B Explanatory memorandum
prepared by Mr Liddell-Grainger and Ms Christoffersen, co-rapporteurs
1 Introduction
1. On 11 October 2017, the Parliamentary
Assembly adopted
Resolution
2184 (2017) “The functioning of democratic institutions in Azerbaijan”,
Note in
which it raised a number of serious concerns relating to the separation
of powers, the independence of the judiciary and the human rights
situation in the country.
2. We were appointed on 24 May 2022 (Mr Ian Liddell-Grainger)
and on 12 October 2022 (Ms Lise Christoffersen) to replace respectively
Mr Richard Bacon (United Kingdom, EC/DA) and Mr Stefan Schennach (Austria,
SOC).
3. Since the adoption of
Resolution
2184 (2017), several statements concerning the developments in Azerbaijan
have been issued by ourselves and the previous co-rapporteurs.
Note Moreover,
the previous co-rapporteur, Mr Schennach, undertook a fact-finding
visit to Baku from 4 to 6 July 2019, the outcome of which was summarised
in his information note of September 2019.
Note
4. On 3-7 June 2023, we visited Azerbaijan to further assess
the honouring of its membership obligations and commitments to the
Council of Europe. During our visit, we met with the Ministers of
Foreign Affairs, Internal Affairs, Justice, the Vice-President of
the Supreme Court, the Prosecutor General and the Ombudsperson,
the heads of the political parties represented in the parliament
and the Azerbaijani delegation to the Assembly. We also met with
representatives of the Bar Association, civil society, extra-parliamentary opposition
and relatives of some persons allegedly detained on politically-motivated
charges (“political prisoners”) and visited the town of Aghdam,
which was returned to Azerbaijan after the 2020 war with Armenia, on
the basis of the Trilateral Statement signed on 9 November 2020
by President of the Republic of Azerbaijan Ilham Aliyev, Prime Minister
of the Republic of Armenia Nikol Pashinyan and President of the
Russian Federation Vladimir Putin (“the Trilateral Statement”).
Following our visit, on 13 June 2023, we made a statement, which
reflects our findings and concerns.
Note
5. We would like to thank the Azerbaijani delegation for their
hospitality and the excellent organisation of that visit and especially
for the trip to Aghdam, which was carried out within one day despite
the 300 km distance between Baku and Aghdam. We had a fruitful dialogue
with the authorities and we are grateful for their willingness to
provide us with information on the issues at stake, including those
which are politically sensitive or legally complex.
6. On 20-21 November 2023, another visit to Baku took place (with
the participation of only one co-rapporteur, Ms Christoffersen).
The programme included three meetings: with officials in the Ministry
of Justice, with officials and prosecutors in the Prosecutor General’s
Office and with the Azerbaijani delegation to the Assembly. Regrettably,
the foreseen meetings with some persons detained allegedly on politically
motivated charges did not take place because of lack of approval
from the executive authorities.
2 Issues
at stake
7. The Republic of Azerbaijan
became the 43rd member State of the Council
of Europe on 25 January 2001. Accordingly, it has entered into,
and has agreed to honour, several specific commitments which are
listed in Assembly
Opinion
222 (2000). It has thus accepted the obligations incumbent on all
member States under Article 3 of the Statute of the Council of Europe
(ETS No.1): compliance with the principles of pluralist democracy
and the rule of law as well as the enjoyment by all persons within
its jurisdiction of human rights and fundamental freedoms.
8. Azerbaijan is currently party to 67 Council of Europe conventions.
Note It has recently ratified the Fourth Additional
Protocol to the European Convention on Extradition (
CETS No.
212), which entered into force on 1 May 2023. On 30 October
2023, it signed the Council of Europe Convention against Trafficking
in Human Organs (
CETS
No. 216).
9. The
Action
Plan for Azerbaijan 2022-2025 was adopted by the Committee of Ministers of the Council
of Europe on 16 February 2022. It is intended to support the country’s
efforts to honour its obligations as a Council of Europe member
State; it serves to bring the legislation into line with European
and international standards, enhance institutional capacities, introduce
best practices and, ultimately, to improve living standards for
the citizens of Azerbaijan. Under this action plan, the Council
of Europe and the Azerbaijani authorities have agreed to continue
to carry forward jointly, through co-operation programmes, reforms
to improve,
inter alia, the
implementation of the European Court of Human Rights case law and
the criminal justice system and to ensure fundamental freedoms.
Numerous areas of co-operation have been identified. The overall
budget for this action plan is €9.6 million.
10. The latest Assembly’s resolution adopted in the framework
of the country’s monitoring –
Resolution
2184 (2017) – evoked a number of serious concerns with regard to
checks and balances (in particular the separation of powers and
the insufficient parliamentary control over the executive), the
independence of the judiciary and the human rights situation, with
a focus on media freedom and freedom of expression, freedom of association and
political freedom, as well as conditions of detention and allegations
of torture and ill-treatment by law enforcement officials. It also
called on the Azerbaijani authorities to “put an end to systemic
repression of human rights defenders, the media and those critical
of the government”, to “review the cases of the so-called ‘political
prisoners’/‘prisoners of conscience’ detained on criminal charges
following trials whose conformity with human rights standards has
been called into question by the European Court of Human Rights,
civil society and the international community” and to “use all possible
means to release those prisoners whose detention gives rise to justified
doubts and legitimate concerns”. It also called on the Azerbaijani
authorities to promptly ensure the full implementation of the relevant
judgments of the European Court of Human Rights and to co-operate
more closely with the Committee of Ministers and the Department
for the Execution of Judgments of the European Court of Human Rights.
11. The adoption of
Resolution
2184 (2017) was coupled with that of
Resolution 2185 (2017) “Azerbaijan’s Chairmanship of the Council of Europe:
what follow-up on respect for human rights?”, based on a report
of the Committee on Legal Affairs and Human Rights,
Note which
voiced concerns similar to those evoked by the co-rapporteurs of
the Monitoring Committee.
12. Since then, on the basis of reports by other committees, the
Assembly also adopted other texts referring to the human rights
situation and the rule of law in Azerbaijan:
Resolution 2509 (2023) “Transnational repression as a growing threat to the
rule of law and human rights” (concerning renditions and cross-border abductions)
Note,
Resolution 2494 (2023) “Implementation of judgments of the European Court of
Human Rights”
Note,
Resolution 2418 (2022) “Alleged violations of the rights of LGBTI people in
the Southern Caucasus”
Note,
Resolution 2362 (2021) “Restrictions on NGO activities in Council of Europe
member States”
Note,
Resolution 2322 (2020) “Reported cases of political prisoners in Azerbaijan”
Note and
Resolution 2279 (2019) “Laundromats: responding to new challenges in the international
fight against organised crime, corruption and money laundering”
(on the so-called Azerbaijani Laundromat).
Note The
Assembly had also a closer look at the situation and the conflict
in Nagorno-Karabakh
Note in its recent
Resolution 2517 (2023) and
Recommendation 2260
(2023) “Humanitarian situation in Nagorno-Karabakh”
Note,
Resolution 2508 (2023) “Ensuring free and safe access through the Lachin Corridor”
Note and
Resolution 2391 (2021) “Humanitarian consequences of the conflict between Armenia
and Azerbaijan / Nagorno-Karabakh conflict”
Note.
13. The above-mentioned Assembly’s resolutions illustrate well
the fact that the majority of concerns raised in its
Resolution
2184 (2017) remain valid and that some new worrying developments
need to be examined, despite a few positive developments. The unresolved
issues related to the conflict over Nagorno-Karabakh add another
level of complexity to the whole picture. Although, we are generally
satisfied with the dialogue conducted with the authorities and their
willingness to provide us information, we cannot close our eyes
on numerous issues of serious concern affecting the state of democracy,
the rule of law and the protection of human rights. Therefore, this
report will take stock of the developments concerning the issues
raised in
Resolution
2184 (2017), which relate mainly to the human rights situation in
the country. Nevertheless, other and new topics will also be examined.
3 Issues
related to the conflict over Nagorno-Karabakh
14. For more than 30 years, Armenia
and Azerbaijan have been in conflict involving Nagorno-Karabakh
and the surrounding areas, which were occupied by Armenian and separatist
forces following the 1992-1994 conflict and despite Resolutions
822 (1993), 853 (1993), 874 (1993) and 884 (1993) of the United
Nations Security Council (UNSC) calling on the latter to withdraw
from the occupied territories. In autumn 2020, Azerbaijan regained
control of parts of its territory after a 44-day war, which resulted
in the loss of more than 6 500 lives and ended with the Trilateral
Statement. Although both countries recognised their territorial integrity,
no peace agreement has been signed yet and there are many unresolved
human rights and humanitarian issues, related mainly to the presence
of an Armenian population in Azerbaijan and the return of Azerbaijani
internally displaced persons to their homeland. The 1990s conflict
produced around 700 000 internally displaced persons and approximately
3 890 missing persons in Azerbaijan and around a thousand in Armenia.
Note As a result of 2020 outbreak of hostilities
the number of missing persons has increased on both sides.
Note
15. The area in and around Nagorno-Karabakh is among the areas
the most contaminated with mines in the world. Most of the mines
were planted during the conflict in the early 1990s.
Note According
to the Azerbaijani authorities, they have been planted by Armenian
forces and the maps provided by Armenia are not reliable, with 25%
accuracy only. It is possible that Armenia, which was responsible
for carrying engineering and fortification works during the occupation
of this area, is still in possession of some accurate mine maps.
People continue to be killed and injured by mines.
Note Between 10 November 2020 and 15
October 2023, 194 incidents of landmine explosion took place in
Azerbaijan, with 65 people being killed and 268 severely injured.
The number of victims of landmines and cluster munitions in the
last 30 years stands at 3 412. The presence of mines and cluster
munitions poses significant threats to people’s life and safety
and creates significant obstacles for the return of internally displaced
persons to their homes. The United Nations Development Programme
(UNDP) is supporting the Azerbaijan National Agency for Mine Action
(ANAMA) with technical expertise, equipment, capacity development
and funding. ANAMA’s head of operations estimated that it could take
up to 10 years to completely demine the territory.
Note Neither Armenia nor Azerbaijan
have ratified the
United
Nations (UN) Convention on Prohibitions or Restrictions on the Use
of Certain Conventional Weapons Which May Be Deemed to Be Excessively
Injurious or to Have Indiscriminate Effects (CCW) and its relevant protocols (II and V), which prohibit
or restrict the use of certain conventional weapons, such as antipersonnel mines
or cluster munitions.
16. Violations of international humanitarian law continue to be
reported and there has been no notable progress investigating alleged
war crimes and other violations of international humanitarian law
committed during the 2020 Armenia-Azerbaijan conflict and in its
immediate aftermath. Bringing the perpetrators of these crimes to
justice is of great importance for ending impunity and ensuring
lasting peace and reconciliation in the region. The Council of Europe
Commissioner for Human Rights has received credible reports from
NGOs and victims and their families about breaches of international
humanitarian law as well as serious violations of human rights by
the parties to the conflict (ill-treatment, torture, decapitation,
mutilation or other forms of despoliation of dead bodies, indiscriminate
or disproportionate use of force, extrajudicial summary or arbitrary executions).
Note She is also concerned about the issue of
captives, in particular of Armenian ones in Azerbaijan. According
to the Azerbaijani authorities, eleven criminal cases had been opened
in relation to the offences allegedly committed by armed forces
of the Republic of Azerbaijan during the 2020 war, as a result of
which four servicemen were brought to court and convicted for crimes
committed against Armenians during the armed conflict. Moreover,
on 29 July 2023, a 68-year-old Armenian resident of Nagorno Karabakh,
Vagif Khachatryan, had been arrested at the Lachin corridor checkpoint
by Azerbaijani border guards during his medical evacuation carried
out by the International Committee of the Red Cross (ICRC). As he
had been on a wanted list since November 2013, he was subsequently
placed in detention on remand in an Azerbaijani prison and accused
of war crimes allegedly committed in 1991 during the first Karabakh
war. At the beginning of November 2023, he was sentenced to 15 years
of prison.
17. Azerbaijan and Armenia lodged interstate applications before
the European Court of Human Rights containing allegations of widespread
violations of the European Convention on Human Rights, including executions,
ill-treatment and mutilations of combatants and civilians. Seven
interstate applications are now pending before the Court in relation
to the 2020 war.
Note Both countries have
also instituted proceedings before the International Court of Justice
(ICJ) with regard to alleged violations of the International Convention
on the Elimination of All Forms of Racial Discrimination. While
Azerbaijan is not a State Party to the Rome Statute of the International
Criminal Court, Armenia ratified it on 13 October 2023.
18. Security along the Armenia-Azerbaijan border remains fragile
due to the lack of delimitation and frequent violations of the ceasefire.
Following an agreement with Azerbaijan and Armenia, in February
2023, the European Union deployed a civilian mission in Armenia.
19. On 19 September 2023, Azerbaijan launched “local counter-terrorism
activities in the Karabakh economic region” in response to the deaths
of two civilians and four police officers in incidents involving landmines
allegedly planted by Armenian armed forced. The military operation
has reportedly led to more than 200 deaths and 400 wounded, including
civilians and children. The Russian peacekeeping forces, who did
not intervene to prevent this use of force, evacuated to their base
several front-line villages (around 13 400 persons, including several
hundred children). On 20 September 2023, an agreement was reached
on a complete cessation of hostilities and seems to have been holding.
On 28 September 2023, the self-proclaimed authorities of the Republic
of Nagorno-Karabakh announced it would dissolve itself and would
cease to exist by 1 January 2024.
Note
20. This military action, which was condemned by the Assembly
in its Resolution 2517 (2023), took place after a ten-month period
of tension during which the Armenian population of the region had
been denied free and safe access through the Lachin Corridor, the
only road allowing it to reach Armenia,
Note in clear disregard of the Trilateral
Statement
Note and
interim measures by the International Court of Justice
Note and the European Court
of Human Rights.
Note The blockage of the Lachin
corridor implied the prolonged disruption in the movement of people
and access to essential goods, services and energy supplies, leading
to the prospect of a slow starvation of the local Armenian population
(around 120,000 persons) and was condemned by Council of Europe
Note and European Union
institutions
Note and discussed by the
United Nations Security Council in August 2023.
Note
21. Due to this situation and the military action of 19-20 September
2023, in only a few days at the end of September, more than 100
600 Armenians from Nagorno-Karabakh, representing nearly 99% of
the region, fled to Armenia, inviting suspicions of many aspects
of ethnic cleansing (mainly from the Armenian authorities but not
only).
Note Following her October 2023 visit
to the region, the Council of Europe Commissioner for Human Rights
was “shocked” to see that the capital of the region – the city of
Khankendi (Stepanakert, in Armenian) – was almost empty following
the departure of its population.
Note The issue of the
human rights, the humanitarian situation of Karabakh Armenians and
international obligations of Azerbaijan was discussed on 12 October 2023
during a joint hearing of the Monitoring Committee with the Committee
on Legal Affairs and Human Rights and the Committee on Migration,
Refugees and Displaced Persons.
Note In
the above-mentioned Resolution 2517 (2023), the Assembly did not
exclude the initiation of a complementary joint procedure between
the Committee of Ministers and itself. On 19 November 2023, the
International Court of Justice issued an order stating that Azerbaijan
should ensure that persons who left Nagorno-Karabakh after 19 September and
wished to return there are able to do so in a safe, unimpeded and
expeditious manner (in the case
Armenia v.
Azerbaijan, concerning the application of the International
Convention on the Elimination of All Forms of Racial Discrimination).
22. We discussed the situation in Nagorno-Karabakh during our
visit to Aghdam and during our meetings in the parliament and with
the Minister of Foreign Affairs. We were informed about the recent
steps taken by Azerbaijan and Armenia to reach a peace agreement
and we hope that both governments will intensify their bilateral
negotiations in this respect. We were also informed about the Azerbaijani
authorities’ plans to demine the region in and around Nagorno-Karabakh
and to reconstruct all destroyed infrastructures in this area and about
the situation in the Lachin corridor. The authorities also informed
us about the envisaged measures aimed at the integration of the
Armenian population, including granting citizenship; unfortunately,
these measures now seem to be less relevant following its mass exodus
to Armenia. Nevertheless, the Azerbaijani authorities stress that
they are ready to accept and reintegrate those who want to return
to the country and accept Azerbaijan’s jurisdiction and that they
have established a special registration system for this purpose.
4 Political
context
23. The Republic of Azerbaijan
has a presidential system of government under which the President exercises
wide constitutional powers vis-à-vis other branches of power, including
the parliament (Milli Majlis). Since 2016, the President can dissolve
the parliament which effectively renders the latter ineffective
as a countervailing power.
Note The
European Commission for Democracy though Law (“Venice Commission”)
in its opinion on the 2016 constitutional amendments concluded that
it was incompatible with European democratic standards.
Note The President also make submissions
to the Milli Majlis regarding the appointment of judges of the Constitutional
Court, the Supreme Court and courts of appeal; appoints judges of
other courts and appoints and dismisses the Prosecutor General,
with the consent of the parliament. In his capacity as the head
of executive power, he appoints vice-presidents of the Republic
and appoints and chairs the Cabinet of Ministers, as well as central
and local executive authorities.
Note As a result,
the issue of checks and balances in Azerbaijan remains highly problematic,
although the separation of powers is enshrined in the Constitution
and parliament has very limited oversight over the executive (namely
through the possibility of expressing no confidence to the government
and overruling the President’s veto).
24. The most recent and earlier presidential election took place
on 11 April 2018 and was called by the President (although the Venice
Commission considered that the provision allowing for the incumbent
president to call for an early presidential election is incompatible
with democratic standards). President Ilham Aliyev (who is also
the Chairperson of the ruling New Azerbaijan Party (YAP) and has
served as president since 2003) stood and won a fourth consecutive
term with 86,02% of the number of valid votes. The constitutional amendments
of 2016 extended the presidential term in office to 7 years so the
next election should take place in 2025.
25. The turnout was 74,3%. Some opposition parties boycotted the
election, referring to restrictions imposed on political freedoms
which made impossible genuine competition. Some others which had
put their candidates, complained about limited time for campaigning
and unfair conditions. Ilgar Mammadov, a well-known opposition politician,
was prevented from running as he remained in prison despite judgments
of the European Court of Human Rights (see below).
Note
26. The International Election Observation Mission (which included
Assembly’s representatives) concluded that the election took place
within a restrictive political environment and under laws which
curtailed fundamental rights and freedoms. Against this backdrop
and in the absence of pluralism, including in the media, the election lacked
genuine competition.
Note
27. The most recent (early) parliamentary elections were held
on 9 February 2020. They were originally scheduled to take place
in November 2020, but were brought forward after parliament was
dissolved in December 2019. Opposition parties accused President Ilham
Aliyev of limiting their ability to campaign and called for a boycott
of the election. Therefore, main opposition parties boycotted the
elections. At that time, Ilgar Mammadov was released from prison,
but his sentence had yet not been quashed despite the Committee
of Ministers’ calls on the authorities to do so (in the context
of the implementation of the Court judgment). The turnout was 46,8 %.
Next parliamentary elections are scheduled for 2025. The electoral
system provides for single-member constituencies using the first-past-the-post
system.
28. The ruling YAP retained its majority, winning 72 of the 125
seats, although this was later reduced to 70 after results in two
constituencies had been annulled. The second largest party (the Civic
Solidarity Party) won only three seats. Several other minor parties
received one seat. There are 41 independent members. The International
Election Observation Mission concluded that voters did not have
a meaningful choice, despite the large number of candidates. The
use of social media by many candidates did not compensate for the
absence of campaign coverage.
Note
29. Therefore, main opposition parties are not represented in
the parliament. These are: Popular Front Party (chaired by Ali Kerimli);
Liberal Party (chaired by Avaz Temirkhan); Musavat Party (chaired
by Arif Hajili) and National Council of Democratic Forces (chaired
by Jamil Hasanli). REAL party (chaired by Ilgar Mammadov) has got
one seat in the parliament.
30. The New Law on political parties was adopted by Parliament
on 16 December 2022 and signed by the President on 11 January 2023.
Following a request by the Monitoring Committee, the Venice Commission adopted
its opinion on 10 March 2023.
Note The
opinion was critical and stressed that the new law had introduced a
number of new highly problematic provisions which risked having
further chilling effects on pluralism in the country. The most serious
among them are the following:
- the
increase of the minimum number of members of the party from 1 000
to 5 000;
- the need for the already registered political parties
to undergo a re-registration;Note
- the lengthy terms and cumbersome procedure foreseen for
the establishment and registration of political parties;
- the prohibition to operate a political party without State
registration;
- the overregulation of internal party structures and operations;
- the excessive control exercised by the Ministry of Justice
over party activities and over the registers of members of political
parties;
- the possibility to suspend the activities of a political
party or even dissolve a party in cases not involving serious violations
of legal acts by such a party.Note
31. The Venice Commission pointed out that these new regulations
gave rise to serious concerns with respect to the right to freedom
of association. It made a number of recommendations addressing the
above concerns including the need to define more precisely the purposes
for which it was not allowed to establish and operate political
parties, while removing unclear or vague terminology and to facilitate
the establishment and registration of political parties, inter alia
by – at the very minimum – reverting to the original number of members required
for the State registration of a political party that figured in
the 1992 law (1 000 members), or replacing the membership requirement
by other less stringent requirements for demonstrating minimum support.
32. During our visit to Baku, we discussed the Law on political
parties of 16 December 2022 and in particular the increase of the
minimum number of members of a political party from 1 000 to 5 000.
We were informed by our colleagues from the parliament about the
plan to move from majoritarian to proportional system in parliamentary
elections, that would need a further approval in a nationwide referendum.
We also met with Ilgar Mammadov and representatives of extra-parliamentary
opposition. They complained about restrictive environment, restrictions
in the enjoyment of freedom of expression, association and assembly,
continuous threats and harassment and repeated arbitrary detentions.
They were also worried about the need for the already registered
political parties to undergo a re-registration and the application
of other controversial provisions of the Law on political parties.
Although some opposition parties, including the REAL party, faced difficulties
in being re-registered, on 9 September 2023, their register of members
was finally approved.
5 Rule
of law
5.1 Fight
against corruption and money laundering
33. According to
Transparency
International Corruption Perceptions Index (which offers an annual
indicator of public sector corruption), in 2022 Azerbaijan ranked
157th out of the 180 countries examined by this organisation.
34. According to Transparency International and
Freedom
House, corruption is widespread, as power heavily concentrated
in the hands of President Ilham Aliyev, and his extended family,
and formal political opposition has been weakened by years of persecution.
Investigative reports published by foreign media (the
International
Consortium of Investigative Journalists in the “Panama Papers” and “Pandora Papers”) in recent years
have revealed evidence that the Aliyev family and persons closed
to it used their positions to amass large private fortunes and to
transfer the money abroad. In the framework of the “Azerbaijani
Laundromat”,
Note money was passed through shell companies,
mainly based in the United Kingdom and its Overseas Territories.
The Azerbaijani Laundromat was also used to corrupt certain members
of the Assembly, as described in the report of the Independent Investigative
Body on the allegations of corruption within the Parliamentary Assembly (IBAC)
of 15 April 2018. Despite these bad practices, Azerbaijan’s reforms
and activities in the area of combating the financing of terrorism
and money laundering were positively assessed by the Committee of Experts
on the Evaluation of Anti-Money Laundering Measures and the Financing
of Terrorism (MONEYVAL) at the end of 2018.
Note In March 2023, MONEYVAL experts visited the
country for the Fifth evaluation round. The authorities indicate
that they have undertaken research and analysis activities in order
to align legislation with the recommendations of the Financial Action
Task Force (FATF) and international standards. Consequently, new
laws, namely, the Anti-Money Laundering and Combating the Financing
of Terrorism Act and the Targeted Financial Sanctions Act, have
been adopted, and other relevant legislation has been amended in
order to ensure compliance and effectiveness of anti-money laundering
and counter-terrorism legislation and policies.
35. Transparency International’s Global Corruption Barometer also
indicates that 15% of public service users paid a bribe in the previous
12 months. In its report following its visit to the country in 2017,
the European Committee for the Prevention of Torture and Inhuman
or Degrading Treatment or Punishment (CPT) expressed concern about
the lack of progress in fighting corruption at Pre-Trial Detention
Facility No. 2 in Ganja, where inmates continued to be obliged to
pay for a majority of basic services (such as visits, telephone
calls, receiving parcels, and receiving food from the prison shop)
to which they were entitled by law.
Note The authorities indicate that
they have taken measures in order to implement the recommendations
mentioned in the above CPT report. An internal investigation had
been conducted on the shortcomings identified by the CPT in some penitentiary
establishments and disciplinary or other measures had been taken
against employees responsible for those shortcomings. A call centre
((012) 889) has been established in the Penitentiary Service in
order to ensure transparency and quick consideration of individuals’
complaints.
36. According to the 2022 US State Department
Country
Report on Human Rights Practices: Azerbaijan,
Note there
are also credible reports about bribes paid to obtain a waiver of
the military service obligation or assignments to easier military
duties. According to the authorities, one criminal case related
to this type of corruption was completed and sent to relevant courts
for consideration in 2021, while two other similar cases were completed
and sent to relevant courts in 2023. Currently, criminal investigation
is pending in five similar cases. It seems that the government has
made some progress in combating low-level corruption. According
to the Anticorruption Department of the Prosecutor General’s Office,
in 2022, over 600 criminal cases were investigated, 186 cases were
sent to courts and 255 persons were convicted (but no senior official).
As regards preventing and combating high-level corruption cases,
the authorities claim that it has been one of their priorities in
the past few years, resulting in identification and prosecution
of senior officials suspected of corruption-related offences. Some
officials at the level of ministers, deputy ministers and other
high-ranking positions have been prosecuted. Between 2019 and 2020,
criminal cases related to malfeasance and other associated crimes
were initiated against ten mayors. Nine of these cases have been
transmitted to the respective courts, while one of them is at the
stage of preliminary investigation. As regards the nine cases which
have been examined by courts, three mayors have been sentenced to
imprisonment for varying terms and one to a corrective works sentence
(the five remaining cases are still pending). In addition, “ASAN
service centres” have been established under the State Agency for
Service and Social Innovations. Their purpose is to ensure that
services provided by State bodies (over 300 services) are implemented
in a transparent, unified and co-ordinated manner.
37. In 2020, the Group of States against Corruption (GRECO) assessed
again the issue of corruption prevention in respect of members of
parliament, judges and prosecutors in the framework of its Fourth Evaluation
Round. It concluded that “only a modest progress” could be noted
in the implementation of the recommendations addressed to Azerbaijan,
as 14 out of its 21 recommendations had been implemented satisfactorily
and four had been partly implemented. At that time, three recommendations
remained not implemented, in particular regarding the composition
of the Judicial Legal Council (JLC) and its greater role in judicial
appointments, reducing the influence of the executive over the prosecution,
and enhancing transparency of asset disclosure of members of parliament,
judges and prosecutors.
Note GRECO
noted progress as regards prevention of corruption in parliament,
due to changes in the framework of public consultations on draft
legislation and the adoption of Law on Rules of Ethical Conduct
of Deputies.
38. During our visit to Baku, we took note of the various steps
taken by the authorities to combat corruption and the implementation
of GRECO’s recommendations, including those contained in its 2022
evaluation report adopted in the framework of the Fifth Evaluation
Round “on preventing corruption and promoting integrity in central
governments (top executive functions) and law enforcement agencies”
(which has not been published at this time). We discussed these
issues in particular with the Prosecutor General and the Minister
of Justice. We stressed that they had to be tackled at each level
of the State, in line with the recommendations of the GRECO.
39. The authorities have indicated that GRECO’s recommendations
concerning the JLC had been recently implemented (see below). With
respect to the recommendations on increasing transparency in the
disclosure of assets of members of parliament, judges and prosecutors,
the form of submission of financial information (declaration) and
the terms for its submission, as well as officials providing such
financial information, authorities receiving this information and
the rules for verifying it have been determined in a law of 24 June 2005
“Rules for submission of financial information by officials”. Further
measures are being considered in the framework of the “National
Action Plan to strengthen the fight against corruption for 2022-2026”
(in particular the creation of a system of electronic information
exchange for checking the compatibility of information provided
by officials in their declarations of financial information with
the information contained in the relevant databases).
5.2 Independence
of the judiciary
40. There are credible reports
that both judges and prosecutors took instructions from the Presidential Administration
and the Ministry of Justice, particularly in politically sensitive
cases, and that judges regularly accepted bribes.
Note Independence
of the judiciary and public prosecutors remains an issue as illustrated
by the number of numerous cases of arbitrary detentions and many
trumped-up or otherwise flawed cases brought against opposition
figures, critical journalists and civil society activists (see below).
Criminal defendants are often denied the right to a presumption
of innocence, a fair and public trial, the possibility to communicate
with a lawyer of their choice, to adequately prepare their defence
or to confront witnesses or present their own witnesses and evidence.
Note
41. Judges of the first instance courts are appointed by the President
on the proposal of the JLC. Judges of appeal court and the Supreme
Court are appointed by parliament on the submission by the President
following the proposal of the JLC. The JLC is responsible for judicial
appointments, transfers, evaluation and disciplinary measures. For
many years its composition raised concerns as regards its independence
as only a minority of its members-judges were appointed or elected
by their peers and it was chaired by the Minister of Justice. This was
not in line with Recommendation
CM/Rec(2010)12 of the Committee of Ministers to member States on “Judges:
independence, efficiency and responsibilities” and was criticised
by GRECO, notably in its 2020 report.
Note
42. In its 2020 report, GRECO also noted that measures had been
taken to increase the role of the JLC in the selection of judges,
to introduce training on integrity-related matters and counselling
on ethics, and, as it appears, a methodology for judicial appointments.
The JLC should be involved in the appointment of all categories
of judges.
43. During our visit to Baku, we noted with satisfaction the fact
that the parliament was examining a draft law which aimed at reforming
the JLC and had taken into account the Council of Europe bodies’
recommendations concerning its composition. The law was finally
adopted on 9 June 2023. According to its provisions, the JLC is
composed of 15 members: three judges of the Supreme Court elected
by the Conference of Judges, three judges from appeal courts elected
by the Conference of Judges, three judges from courts of first instance elected
by the Conference of Judges, a judge appointed by the Constitutional
Court, a person appointed by the parliament, a person appointed
by the relevant executive authority (the Ministry of Justice), a
person appointed by the Bar, a legal professional appointed by the
Azerbaijani National Academy of Sciences and a representative of
legal community elected by the Conference of Judges. Accordingly,
10 out of 15 members of the JLC are judges elected by their peers.
There is only one representative of the executive branch among the remaining
five members of the Council. The chairperson of the JLC is elected
from among members who are judges. In accordance with the new legislation,
the judicial members of the JLC and representatives of the legal community
were elected by open voting at a conference held this year with
the participation of 130 judges representing all courts of the country.
The JLC started its work in a new composition and elected its chairperson (the
President of the Supreme Court) at its first meeting. According
to the authorities, independence of the JLC is ensured by the fact
that all its decisions are taken by voting, all votes have the same
weight and decisions on important issues related to judges, including
their disciplinary responsibility and immunity, are taken only by its
judicial members. Decisions of the JLC can be appealed to the Plenum
of the Supreme Court. The activities of the JLC are directly financed
from the State budget and the amount of current expenses foreseen
for its functioning cannot be lower than that of the previous financial
year.
44. As to prosecutors, the main concerns are the undue influence
of the executive over the Prosecutor’s Office and the lack of asset
disclosure regime; GRECO’s recommendations in this respect have
not been implemented yet. Nevertheless, GRECO noted progress as
regards disciplinary offences, the Code of Ethical behaviour and
the periodic appraisal system. Further, a new set of criteria has
been introduced for recruiting law enforcement officers, the rules
on competitive selection of prosecutors have been extended to cover
senior prosecutors, and new guidelines have been adopted on accessory
activities. Improvements have also been made regarding training
on integrity-related matters.
Note
45. Issues concerning the reform of the JLC, the training of prosecutors
and the fight against corruption are also currently examined by
the Committee of Ministers in the context of the execution of the
Court judgments concerning arbitrary arrests and detention or other
misuse of criminal law against government critics, civil society
activists and human rights defenders (Mammadli group, see below).
In the context of the examination of this group of judgments, the
Committee of Ministers recently welcomed the information provided
by the authorities regarding the removal of all metal cages from
court rooms in Azerbaijan.
Note
6 Human
rights issues
6.1 European
Convention on Human Rights
46. Azerbaijan ratified the European
Convention on Human Rights in 2002. It has recently ratified Protocol No.
16 to the Convention (
CETS.
No. 214).
Note On
8 March 2023, Azerbaijan also signed Protocol No. 13 to the Convention
concerning the abolition of the death penalty in all circumstances
(
ETS
No. 187) but has not ratified it yet.
47. Since the entry into force of the Convention in Azerbaijan
on 15 April 2002 and till 31 December 2022, the European Court of
Human Rights has delivered 274 judgments concerning this country,
including 263 judgments finding at least one violation of the Convention
(concerning in particular violations of the right to a fair trial,
the right to liberty and security, the protection of property and
the right to freedom of assembly and association).
Note In only three judgments (out of
274), the Court found no violation of the Convention.
48. In 2022, the Court dealt with 320 applications concerning
Azerbaijan, of which 269 were declared inadmissible or struck out.
The Court delivered 23 judgments (concerning 51 applications), 22
of which found at least one violation of the Convention.
Note
49. According to the latest statistics from the Court, 2 050 of
the 74 050 pending applications as of 31 October 2023 – that is
2,8% of the total – concerned Azerbaijan, putting it in eighth place
in terms of the States with the largest number of applications pending
before the Court.
Note
6.2 Implementation
of judgments of the European Court of Human Rights
50. Azerbaijan belongs to ten Council
of Europe member States which have the biggest number of unimplemented
Court judgments (namely judgments pending before the Committee of
Ministers, which supervises their execution according to Article
46, paragraph 2, of the Convention). According to the latest – 16th
– Annual Report of the Committee of Ministers on Supervision of
the
execution
of judgments and decisions of the European Court of Human Rights
(“CM Annual Report 2022”), it ranked 4th, with 285 judgments pending before
the Committee of Ministers as of 31 December 2022 (after Ukraine,
Romania and Türkiye).
Note In 2022, the Committee
of Ministers closed the examination of 35 cases concerning Azerbaijan,
including 32 “leading cases” (namely cases identified as disclosing
a problem, in law and/ or practice, at national level, often requiring
the adoption by the respondent State of new or additional general
measures to prevent recurrence of similar violations of the Convention).
Note
51. As of 22 September 2023, 323 cases were pending before the
Committee of Ministers, out of which 50 “leading cases” and 273
“repetitive cases” (namely cases relating to a structural and/or
general problem already raised before the Committee of Ministers
in the context of one or several leading cases). In total, so far 436
cases have been transmitted to the Committee of Ministers for supervision,
out of which 113 have been closed by final resolutions. While 14
“leading cases” have been closed, 64 are still pending.
Note Many of them, concerning structural
problems have been pending for over 10 years.
Note
52. Cases/groups of cases under “enhanced procedure” (that is
a procedure designed for more complex or urgent cases and aimed
at allowing the Committee of Ministers to closely follow progress
of the execution) concern:
- arrests
and detention considered by the Court as a misuse of criminal law
with the intention to punish and silence the applicants (group Mammadli);Note
- violations of the right to freedom of expression (Mahmudov
and Agazade group concerning unjustified convictions and prison
sentence of journalists as sanction for defamationNote and the Khadija Ismayilova judgmentNote also concerning a violation
of the right to respect for private life and reputation of a renowned investigative
journalist);
- violations of the right to freedom of assembly through
the dispersal of unauthorised peaceful demonstrations not posing
any threat to public order (the Gafgaz Mammadov group);Note
- excessive use of force by the security forces and lack
of effective investigations (the Muradova, Mammadov (Jalaloglou)
and Mikayil Mammadov groups);Note
- cases concerning non-enforcement of final domestic court
decisions, including orders for the eviction of internally displaced
persons unlawfully occupying houses or apartments (the Mirzayev group,Note which makes
up a significant proportion of Azerbaijan’s unimplemented cases),
decisions pertaining to other kind of property rights, such as the
right to use a plot of land (the Humbatov group)Note and
decisions ordering the applicants’ reinstatement in their previous
posts (Tarverdiyev group);Note
- the Sargsyan judgment concerning the impossibility for
persons displaced during the active military phase of the Nagorno-Karabakh
conflict to gain access to their homes and properties in the region;Note
- violations of the right to free and fair elections due
to arbitrary application of electoral legislation in the context
of the parliamentary elections of 2005 and 2010 (Namat Aliyev group);Note
- inhuman and degrading conditions of detention as well
as unfairness of civil and criminal proceedings (the group of two
cases: Insanov v. AzerbaijanNote and Rzakhanov
v. AzerbaijanNote);
- violation of the right to respect for private life and
the right to a fair trial on account of lawyers’ disbarment (the
Namazov group);Note
- the Makuchyan and Minasyan judgmentNote concerning failure to
take effective action to deter the commission of offences against
the lives of individuals due to the impunity granted to an Azerbaijani officer
who murdered two Armenian officers during a NATO event in Budapest
in 2004;
- extra-legal transfer from Azerbaijan to Türkiye and denial
of effective guarantees of protection against arbitrary (Shenturk and Others v. Azerbaijan);Note
- two cases concerning violations of freedom of religion
of Jehovah’s Witnesses: due to the absence of alternative service
system for conscientious objectorsNote and due to a refusal
to allow the import of religious books.Note
53. Moreover, the Committee of Ministers is supervising under
“standard supervision” (that is supervision applied to all cases,
mainly followed by the Department for the Execution of Judgments)
the execution of over 140 cases (judgments and friendly settlements),
including judgments concerning extradition (Garayev group),
Note unfair criminal
proceedings against some opposition activists (Huseyn and Others
group),
Note violations
of the right to freedom of association due to impediments to registering
associations (the Ramazanova group),
Note cases concerning unlawful
evictions and other violations of the right to protection of property
(
Akhverdiyev v. AzerbaijanNote) and cases concerning pre-trial
detention without any judicial order (
Farhad
Aliyev c. AzerbaijanNote).
54. As regards just satisfaction awarded by the Court in cases
against Azerbaijan, it amounted to € 890 490 in 2021, € 986 152
in 2022 and € 407 035 in the first half of 2023 (till 8 June 2023).
Note In 2022, just
satisfaction was paid within deadline in 13 cases and in 25 cases
– outside the deadline. As of 31 December 2022, confirmation of
payment of just satisfaction was awaited in 73 cases (including
45 cases awaiting this information for more than six months, that
is outside payment deadline) and there were 3 cases only awaiting default
interest.
Note
55. According to the CM Annual Report 2022
Note,
in 2022, the Azerbaijani authorities submitted a total of 47 action
plans
Note,
action reports
Note and communications. At the
end of 2022, the Department for the Execution of the European Court
of Human Rights judgments was still awaiting for initial action
plans/action reports in 17 groups/cases (despite the expiry of the
extended deadline in this respect) and updated action plans/action reports
or communications containing additional information in six cases.
56. As regards the progress in execution of judgments against
Azerbaijan in 2022, the CM Annual Report 2022 points out to the
closure of the Azizov and Novruzlu cases (see the Mammadli group
below),
Sargsyan v. Azerbaijan judgment
(in which the Committee of Ministers welcomed the readiness of the
authorities of Azerbaijan to proceed with the payment of just satisfaction,
depending on the reciprocal readiness of the Armenian authorities
to pay the just satisfaction in the
Chiragov
and Others v. Armenia case), cases from the Namazov group
(see below) and cases concerning freedom of expression (see below).
Note
57. In 2022 and 2023, the Department for the Execution of Judgments
carried out visits to Baku to discuss the implementation of the
Court’s judgments and strengthen its co-operation with the Azerbaijani
authorities. At the same time, a new Council of Europe project “Support
for the improvement of the execution of the judgments of the European
Court of Human Rights by Azerbaijan” was launched, in the framework
of the Council of Europe Action Plan for Azerbaijan (2022-2025).
The project, which started in September 2022, is funded by the Council
of Europe’s Human Rights Trust Fund (HRTF) and is aimed at supporting
the revision of the national practices to ensure prevention of –
and provide redress for – the human rights violations that occur
in the most frequent cases being lodged with the Court.
Note
58. The implementation of judgments of the European Court of Human
Rights against Azerbaijan was recently examined by the Assembly
in its
Resolution
2494 (2023). The Assembly noted that Azerbaijan was one of the Council
of Europe member States having the highest number of non-implemented
Court’s judgments and facing serious structural or complex problems,
some of which had not been resolved for over 10 years. The rapporteur
of Committee on Legal Affairs and Human Rights, Mr Constantinos
Efstathiou (Cyprus, SOC), discussed this issue during his fact-finding
visit to Baku on 20-23 November 2022.
Note In
his final report, Mr Efstathiou took note of information concerning
some positive steps such as the establishment in early 2022 of a
working group on the execution of judgments within the Presidential
Administration, including the most relevant agencies (such as the
Ministry of Justice, Ministry of Interior, Office of the Prosecutor
General and Supreme Court), the swift payment of just satisfaction
in many cases and a number of legislative and practical reforms
adopted, especially in the field of justice. However, he also noted
that the working group was confronted with a backlog of cases and
the authorities had delays in taking action to address individual
and general measures to implement the Court judgments. He recommended
to “(…) improve the domestic accountability of the government for
addressing ECtHR judgments in a timely manner, perhaps through giving a
greater role to civil society, the parliament and ombudsman, whose
remit could perhaps include supervising the implementation of human
rights judgments or even to have the right of legislative initiative
to help in resolving human rights issues”.
Note He also encouraged the
Azerbaijani authorities, including the Supreme Court, to take timely
action in addressing the outstanding cases as swiftly as possible,
in particular to promote the independence of the judiciary as well
as freedom of expression and of association.
59. During our visit to Baku, we raised the issue of the implementation
of judgments of the European Court of Human Rights, in particular
with the Vice-President of the Supreme Court, Mr Çingiz Əsgerov.
We stressed that one of the biggest issues was the implementation
of the cases concerning violations of the Convention arising from
the arbitrary arrest and detention of opposition politicians, civil
society activists, human rights defenders and critical journalists.
We heard from the Vice-President of the Supreme Court that its Plenum
was more and more involved in the implementation of the Court’s
decision by taking judgments on individual measures (such as on
the reopening of proceedings), in particular in cases concerning
unfair trial, torture or ill-treatment. The Supreme Court also took
some legislative initiatives, as regards reform of criminal and
civil law or the ratification of Protocol No. 16 to the Convention.
It was also taking initiatives to harmonise the domestic case law
and avoid discrepancies between lower courts’ case law, in line
with the requirements stemming from the Convention.
6.3 Freedom of expression and media freedom
6.3.1 General situation
60. Since the adoption of
Resolution
2184 (2017), serious concerns about restrictions on the right to
freedom of expression has remained valid and there have been new
negative developments, as pointed out by various Council of Europe
bodies (including the Assembly, the Committee of Ministers and the
Commissioner for Human Rights), the US State Department and renowned
human rights NGOs such as Amnesty International, Human Rights Watch
and Reporters Without Borders.
61. On 27 April 2023, the Monitoring Committee held a joint hearing
with the Committee on Legal Affairs and Human Rights and the Committee
on Culture, Science, Education and Media, in the context of the
preparation of a report by the Committee on Legal Affairs and Human
Rights entitled “Threats to life and safety of journalists and human
rights defenders in Azerbaijan” (rapporteur: Ms Hannah Bardell,
United Kingdom, NR).
Note Issues concerning media
freedom in Azerbaijan are also followed within the Committee on
Culture, Science, Education and Media by the general rapporteur
on media freedom and safety of journalists, Mr Mogens Jensen (Denmark,
SOC).
62. According to the authorities, more than 5 100 media outlets
freely operate in Azerbaijan and the overall number of internet
users exceeds 80% of the population. Nevertheless, the 2022
Reporters
Without Borders’ World Press Freedom Index placed Azerbaijan 154th out
of 180 countries. According to Reporters Without Borders, since
2014, any kind of pluralism has been destroyed. Almost all media
space is under the control of the authorities, with political appointments
of relevant media regulators and closures of independent media. Independent
news sites such as Azadliq or Meydan TV are based abroad. Government
media are used to smear the reputations of independent journalists,
even by publishing personal information that could compromise them.
Reporters Without Borders also stress that journalists’ access to
information is restricted, with government agencies refusing to
answer their questions. Tensions with Armenia over the disputed Nagorno-Karabakh region
provide an additional pretext for censoring the media; only Azerbaijani journalists
from State or pro-government media can cover the events in the Lachin
corridor.
Note Generally under surveillance
by security forces, journalists cannot guarantee protection for
their sources.
63. Media remain severely restricted, and many media outlets practice
self-censorship and avoid topics which might be politically sensitive
due to fear of government retaliation. Many websites publishing
dissenting views (including the Organised Crime and Corruption Reporting
Project or Azerbaijani media outlets such as Azadliq and MeydanTV
or Xural.com, Bastainfo.com or Criminal.az) have been blocked. Foreign
media outlets, including Voice of America and Radio Free Liberty
(RFE/RL), were banned in 2009. In June 2022, the Azerbaijani authorities
also blocked Russian news agency RIA Novosti. Despite these restrictions,
the internet remains the main method for citizens to access independent
media. For example, while Meydan, Azadliq and other media outlets
were blocked, the information they released was accessible on social
media such as Facebook or YouTube.
Note
6.3.2 Situation of journalists and bloggers
64. Journalists and other people
publicly criticising the government face arrest, detention and other
forms of harassment. Many journalists remain in detention on remand
or have been convicted on various allegedly fake charges. The Council
of Europe’s Platform to promote the protection of journalism and
safety of journalists is currently following several cases of that
kind, including of Nurlan Gahrmanli, Avaz Zeynali (and lawyer Elchin Sadigov),
Elnur Shukurov, Osman Narimanoglou Rzayev, Rashad Ramazanov, Polad
Aslanov, Aslan Gurbanov and Vugar Mammadov.
Note
65. In September 2023, Nurlan Gahrmanli, a freelance journalist
and blogger known for his anti-war posts, was arrested and sentenced
to 30 days in administrative detention for “disseminating prohibited
information”. In September 2022, Avaz Zeynali, chief editor of the
independent news outlet Xural, and lawyer Elchin Sadigov, a human
rights lawyer known for representing opposition figures, were arrested
on allegedly politically motivated charges of accepting and facilitating
bribery, respectively. Their case is related to that of Elnur Shukurov,
the owner of the Sada TV Internet channel. He was also arrested
on charges of active bribery in September 2022. Osman Narimanoglu
Rzayev, a journalist and owner of the news website Demokratik.az,
was arrested on 5 July 2022 on charges of extortion or request to
transfer property or rights. In May 2022, blogger Rashad Ramazanov
(who had previously spent six years in prison following a conviction
for alleged drug possession) was arrested again and is detained
on charges of large-scale drug trafficking. He considers that the
charges have been fabricated in connection with his criticism of
the authorities on social media, and stated in court that he had
confessed under torture.
66. In February 2022, Polad Aslanov, chief editor of independent
news websites Xeberman and Press-az, who was undertaking an investigation
into alleged corruption in the tourism sector involving high-ranking officials,
was finally convicted by the Supreme Court to 13 years of prison
for “high treason”. In January 2022, he undertook a 20-day hunger
strike due to the physical and mental pressure he suffire from in
prison.
67. In April 2021, Talysh blogger Aslan Gurbanov, was sentenced
to seven years in prison for “public incitement against the State”
and “incitement to national, racial, social, religious hatred and
hostility through the media”. He remained for many months in Gobustan
prison (where detention conditions are very tough). In June 2022,
the Supreme Court reduced his term in Gobustan prison from two years
to one year. In July 2023, Vugar Mammadov, the editor-in-chief of
the daily Hurriyyet, the Youtube channel Hurriyyet TV and the news
portal Hurriyyet.az, was sentenced to one month in administrative
detention on charges of “posting, or failure to prevent from posting,
confidential information on the internet” after he had broadcast
a critical interview about the Ministry of Defence.
68. Moreover, during the April 2023 hearing, Ulvi Hasanli indicated
that in 2017 he had been arrested after having gone to hospital
and “sentenced” to one year of military service in Karabakh despite
health reasons preventing him from doing military service. He considers
this was due to his being an activist and journalist. During his
military service and after his return, AbzasMedia (where he had
been editor-in chief) experienced cyberattacks, several website
crashes and had their domain banned. On 20 and 21 November, Mr Hasanli
and his two collaborators Sevinc Vaqifqizi and Mahammad Kekalov
were arrested by police and are now detained on charges of unlawfully
bringing money to the country. They face a sentence of up to 8 years
of prison. Mr Hasanli and Mr Kekalov also allege that they were
ill-treated by police during their apprehension on 20 November.
69. Moreover, recently, since 22 June 2023, police have detained,
beaten, threatened, or otherwise obstructed the work of, at least
six journalists who reported about the protests against a local
goldmine in the village of Soyudlu.
Note
70. As stressed during the April 2023 hearing, journalists in
Azerbaijan face physical threats as well, which may include murder
followed by impunity and/or unsatisfactory investigations. For the
past 20 years no official or police officer has ever been sanctioned
for hitting or insulting a journalist. In February 2022, Avaz Hafizli,
a reporter and LGBTI activist, was brutally murdered by his cousin;
the latter was sentenced to nine years and six months in prison,
a sentence which might be considered as duly lenient.
Note In May 2022, journalist
Aytan Mammadova was followed home, accosted in an elevator and threatened
with a knife to her throat; the perpetrator is still at large. Ms Mammadova
believes that the threat was aimed at stopping her to investigate on
a high-profile child murder trial. Earlier, in February 2022, police
detained, beat and insulted two other female journalists, Fatima
Movlamli and Sevinj Sadigova, who were covering protests by mothers
of deceased Azerbaijani servicemen.
Note
71. Those in jail or who left the country, as well as their relatives,
continue to face threats to their safety. During the April 2023
hearing, Arzu Geybullayeva drew on her experience, having been herself
targeted and humiliated, and her reputation tarnished, even as a
journalist living outside the country.
72. The case of Mahammad Mirzali illustrates that persecution
continues even if the journalists leave Azerbaijan. This well-known
blogger, who had been arrested and tortured in 2013 and then constantly
under threats, left Azerbaijan in 2016. He now lives in France,
where he has been granted political asylum. In March 2021, he was
stabbed in the centre of Nantes. In June 2022, another suspected
attempt to murder him occurred at a motorway toll in Angers.
Note Reporters Without Borders
believes that the assassination attempts against Mr Mirzali were
ordered from the highest level of State. Moreover, a former Azerbaijani
deputy economy minister brought a defamation suit against Mr Mirzali
before a French court, but the latter considered it as inadmissible.
Note The blogger’s family
was also subject to various forms of harassment: in 2018, his father and
brother-in-law were arrested and, in 2021, his sister was threatened,
by an anonymous person, with the sharing of intimate pictures.
Note
73. Foreign journalists based abroad are also targeted, as was
the case of Swedish journalist Rasmus Canbäck, who reported on Nagorno-Karabakh
and was harassed on Twitter by Azerbaijani trolls and diaspora members.
Note
74. The Council of Europe’s Platform to promote the protection
of journalism and safety of journalists also follows the situation
of Emin Huseynov, founder of the Institute for Reporters’ Freedom
and Safety, an NGO monitoring human rights violations against journalists,
whose operations were shut down by the authorities in August 2014.
Mr Huseynov, who now lives in Switzerland, was charged with tax
evasion and abuse of power and faces up to 12 years in prison if
convicted.
Note Before he
left for Switzerland, he had clandestinely resided for several months
in the Swiss Embassy in Baku; during this period, he renounced his
Azerbaijani citizenship, being under pressure. On 13 July 2023,
the European Court of Human Rights found that the termination of Mr Huseynov’s
citizenship, which made him stateless, was arbitrary and amounted
to an interference with his right to respect to private life (violation
of Article 8 of the Convention).
Note
75. As stressed by the experts during the April hearing, State
institutions film journalists and activists’ private lives through
hidden cameras and tapped devices. They then discredit them by broadcasting
their private lives on television and social media. Azer Ahmadov’s
career as editor of the Azadlig newspaper, the country’s opposition
paper, ended as a result of a personal video being broadcasted on
prime-time pro-government television. A listening device was found
in the office of imprisoned activist Bakhtiyar Hajiyev.
76. There are suspicions that the Azerbaijani authorities might
have used cyber tools to target journalists. In 2021, as part of
the Pegasus revelations, it was revealed that over 1 000 Azerbaijani
numbers were selected for targeting by the government.
Note Among them were 48
journalists from Azerbaijan, including Sevinc Vaqifqizi, a freelance
journalist for independent media outlet Meydan TV, whose phone had
been infected over a two-year period until May 2021; Khadija Ismayilova,
an investigative journalist at the Organized Crime and Corruption
Reporting Project, whose phone had been regularly infected for nearly
three years and Jasur Sumerinli, a journalist based in Germany and
reporting on military affairs.
Note In
Resolution 2513 (2023) “Pegasus and similar spyware and secret state surveillance”,
the Assembly stressed that there was a “strong evidence” that Azerbaijan
had used the Pegasus spyware against journalists and civil society
activists, including in connection with the conflict with Armenia.
Note
77. It should be noted that the Committee of Ministers is examining
the issue of protection of journalists and the establishment of
a favourable environment to ensure their safety and security against
threats, attacks, abuse and harassment from State and/or non-State
actors in the context of the implementation of the Court judgment
Khadija Ismayilova group v. Azerbaijan.
On the occasion of the latest examination of this case, the Committee
of Ministers “underlined the importance of ensuring that the investigating
authorities duly investigate any possible connection and links between
crimes committed against journalists and their professional activities,
bearing in mind the importance of meaningful investigations and
adequate sanctioning for the fight against impunity”. It also asked
the Azerbaijani authorities “to consider measures aimed at improving
the practice of domestic courts with respect to balancing exercise
between the right to respect for private life and reputation and
the right to freedom of expression.”
Note
6.3.3 Legal framework
6.3.3.1 Criminal sanctions for defamation
78. Journalists operate in a very
restrictive legal framework, which has become increasingly repressive
over the past 20 years.
79. Despite judgments of the European Court of Human Rights criticising
the use of criminal sanctions for defamation, criminal provisions
are often used to silence government critics. According to the Media
Rights Institute, an independent media monitoring group, in 2022,
at least four individuals were convicted following private prosecution
procedures.
Note Ali Aliyev, the chairman of the opposition
Citizen and Development Party (VİP) was sentenced to one year of
imprisonment following slander lawsuits brought by a border guard (Mr Aliyev
commented on a helicopter crash in which the guard had survived);
journalist Jamil Mammadli was sentenced to a year and six months
of correctional labour on slander and insult charges for corruption allegations
he had made against the head of the executive authority of a regional
district; lawyer Ilham Aslanoglu was convicted to six months in
prison for insult due to comments allegedly made concerning the Terter
case (namely a wide-scale 2017 military investigation that involved
the systematic torture of more than 400 soldiers and civilians;
see below);
Note activist
Abid Gafarov was sentenced to one year in prison for alleged defamation
of Nagorno-Karabakh veterans (it is believed that this was related
to the fact that he had highlighted torture in the Terter case).
Note
80. It should be recalled that the Committee of Ministers is still
examining the implementation of the Mahmudov and Agazade group concerning
unjustified convictions and prison sentences of journalists as sanction
for defamation (see above). According to the Court’s case law, while
the use of criminal law sanctions in defamation cases is not in
itself disproportionate, a criminal conviction is a serious sanction,
having regard to the existence of other means of intervention and
rebuttal, particularly through civil remedies. It can be used only
in exceptional circumstances, notably where other fundamental rights
have been seriously impaired, as, for example, in the case of hate
speech or incitement to violence.
Note The Committee of Ministers notes that there
has been no progress as regards the issues of reducing prison sentences
for defamation (Article 147 of the Criminal Code) and insult (Article
148 of the Criminal Code) and legislative reforms are still awaited.
Note It has
recently received information on measures taken by the General Prosecutor’s
Office and statistical information on the use of criminal sanctions
for defamation. However, the Committee of Ministers still awaits information
on possible measures aimed at amending the legislation on defamation
to remove lengthy prison sentences and, as regards other provisions
of the Criminal Code which might limit freedom of expression.
Note During our
visit to Baku, we heard from Mr Əsgerov that there were no more
cases before the Supreme Court concerning criminal sanctions against
journalists for libel.
6.3.3.2 The Law on Media of 30 December 2021
81. A new Law on Media was adopted
on 30 December 2021 and entered into force on 8 February 2022. According
to its preamble, it determines “the organisational, legal and economic
bases of activity in the field of media, as well as general rules
for the acquisition, preparation, transmission, production and dissemination
of mass information”. It imposes on journalists and media outlets
an obligation to register at the Media Development Agency (MDA)
Note by 25 March 2023.
It also allows the MDA to collect the personal information of those
who have registered, bars non-residents from owning media and requires
journalists to have higher education, a formal contract and three
years’ experience to obtain accreditation.
82. Following a request by the Monitoring Committee, the Venice
Commission issued an opinion on this law on 20 June 2022. It concluded
that “in the context of an already extremely confined space for
independent journalism and media in Azerbaijan, the law will have
a further “chilling effect”. Many provisions are not in line with
European standards on freedom of expression and media freedom and
do not allow the media to effectively exercise its role as a “public
watchdog”.
Note The Venice Commission
recommended not to implement the law and expressed several concerns.
In particular, it urged the Azerbaijani authorities to repeal the excessive
restrictions on the establishment of media entities (including as
regards foreign ownership and foreign funding) in order to foster
media pluralism; to either abolish the Media Register or repeal
the excessively restrictive conditions for journalists and media
entities in order to be included in the Media Register (in particular as
regards the provision of detailed personal information); to repeal
the accreditation scheme for journalists; to amend the provisions
which do not guarantee sufficient protection for the right of journalists
not to disclose their sources of information and to broaden the
definition of a journalist in line with the “public watchdog” role
of journalists. Similar concerns were also expressed by the Commissioner
for Human Rights in a letter addressed to the authorities of Azerbaijan
in January 2022.
Note In December
2022, the Committee of Ministers, in the framework of the supervision
of the implementation of the Khadiya Ismayilova judgement, called
on the authorities to bring the Law on Media fully in line with
the Council of Europe standards, to make full use of the Organisation’s
expertise and to provide information on the composition and practice
of the MDA.
Note
83. According to the journalists whom we met in Baku, this law
is aimed at stifling independent electronic media. So far, within
only one year of the activity of the MDA, around 40 journalists
and media outlets have been refused registration, out of which around
20 have brought their cases to courts. Unregistered media and journalists
are not allowed to attend open sessions of the parliament. The Media
Register seems to have been created to essentially play the role
of a license and permission provider, which is against the Constitution
of Azerbaijan. During our visit to Baku, we raised the issue of
freedom of expression and access to information during our discussion
with colleagues from the parliament. We were informed that while
classical media such as State television were losing their public,
there were no problems with accessing electronic media, including social
networks. According to the authorities, the draft of the Law on
Media was discussed with over 800 journalists and media representatives.
The law restricts the State bodies' right to establish media entities,
thus taking an important step towards preventing unfair competition
and creating broad opportunities for media to continue their activities
in a free, independent and pluralistic environment. It does not
apply to social networks, video sharing platforms, bloggers or other
activities within these platforms, nor does it attempt to regulate
or restrict their activities in any way. With regard to the registration
of journalists, the law allows journalists to obtain a card confirming
their voluntary registration. The card does not classify him/her
as a journalist; it only confirms that the information about its
owner is recorded in the Media Register.
6.4 Freedom of association and peaceful
assembly
6.4.1 Right to freedom of association
6.4.1.1 Legislative framework
84. Serious concerns remain with
respect to ongoing restrictions on the right to freedom of association
and assembly and the overall situation of NGOs and civil society
activists, which continue to operate in a very repressive environment.
85. As regards the right to freedom of association, the Assembly
has already offered a critical appraisal of the situation in Azerbaijan
in
Resolution 2226 (2018) “New restrictions on NGO activities in Council of Europe member
States”
Note,
Resolution 2362 (2021) “Restrictions on NGO activities in Council of Europe
member States”
Note and
Resolution 2225 (2018) “Protecting human rights defenders in Council of Europe
member States”.
Note
86. The restrictive legislative framework amended in 2014 is still
in force and applied in a very restrictive way. Registration of
NGOs seeking legal personality status (before the Ministry of Justice)
is extremely cumbersome. Although certain rules have been simplified
(due to the “single window” procedure for registering grants), NGOs
have very limited access to funding. In particular, access to foreign
funding is very limited due to the requirement for donors to obtain
a pre-approval from the Ministry of Justice. The latter monitors
NGO activities and conduct inspections. The bank accounts of some
organisations or of their leaders (for example, Intigam Aliyev and
Asabali Mustafayev) are still frozen.
Note Therefore, it is
very difficult for NGOs to operate.
87. In 2021, the European Court of Human Rights delivered a judgment
in the case Democracy and
Human Rights
Resource Centre and Mustafayev v. Azerbaijan.
Note The
case concerns judicial orders against the applicants, a human rights
NGO and its chairman (a human rights lawyer), pending the investigation
into a criminal case brought against a number of NGOs in 2014 for
alleged financial irregularities. The Court found, amongst others,
a violation of the right to protection of property (Article 1 of
Protocol No. 1 to the Convention (ETS No. 9)) as concerned the freezing
of the applicants’ bank accounts, and a violation of the right to
freedom of movement (Article 2 of Protocol No. 4 to the Convention
(ETS No. 46)) on account of travel bans imposed on Mr Mustafayev
by the prosecuting authorities and by the domestic courts. Moreover,
it considered that the purpose of the restrictions on the applicants’
rights had been to punish them for their work in the area of human rights
and to prevent them from continuing their activities (violation
of Article 18 taken in conjunction with Article 1 of Protocol No.
1 in respect of both applicants and in conjunction with Article
2 of Protocol No. 4 in respect of Mr Mustafayev). The Committee
of Ministers is now examining, under standard supervision, this
case together with other cases concerning violations of the right
of freedom of association (
Ramazanova
and others v. Azerbaijan group of cases
Note). Questions
relating to the legislation on the registration and operations of
NGOs are being examined in connection with the execution of this
group of judgments. The authorities have indicated that the freezing
of bank accounts and other restrictions concerning Mr Mustafayev
and his NGO had been lifted following the European Court of Human
Rights judgment.
88. In a communication submitted to the Committee of Ministers
in May 2023, a group of NGOs (Human Rights House Foundation, European
Human Rights Advocacy Centre, Election Monitoring and Democracy Studies
Center, Legal Education Society and Independent Lawyers Network)
state that none of the systemic shortcomings have been adequately
rectified. Arbitrary procedure for NGO registration is accompanied
by cumbersome reporting requirements and excessive powers of the
Ministry of Justice for monitoring and control. Nearly all NGOs
working on human rights are forced to operate in grey zone as their
bank accounts were frozen or offices raided, and they cannot receive
grants from the European Union.
Note
6.4.1.2 Reprisals against human rights defenders
and other civil society activists
89. Like journalists and bloggers,
civil society activists expressing critical views about the government
are threatened, persecuted and harassed (also physically). The use
of administrative detention and imprisonment on criminal charges
is common. Human rights activists are particularly targeted. Their
situation is constantly followed by the Assembly’s General Rapporteur
on the Situation of Human Rights Defenders and Whistleblowers.
Note
90. In this context, the Council of Europe Commissioner for Human
Rights and ourselves expressed concern about the arrest and detention
of Bakhtiyar Hajiyev, a well-known Azerbaijani civil activist and
former “prisoner of conscience”. He was arrested on 9 December 2022
on charges of hooliganism and contempt of court.
Note In June 2023, new charges, in relation
with his receiving grants from the European Endowment for Democracy, were
brought against him. During our visit to Baku, we raised this issue
during our talks with various authorities, who replied each time
that his detention was linked with a private dispute. In December
2021, our predecessors, Messrs Schennach and Bacon, were also worried
about the state of health of Saleh Rustamov, activist of the Azerbaijani
Popular Front Party sentenced to 7 years and 3 months in prison
in 2018 following a trial considered by human rights activists as
unfair and based on unfounded grounds.
Note Although
he was released in May 2022, he is now harassed by pro-government
media (according to his family). The Commissioner for Human Rights
also highlighted the case of human rights lawyer Elchin Sadigov
and journalist Avaz Zeynalli, prosecuted on grounds that lack credibility
(see above).
Note Concerns were also voiced about the
arrest and conviction of Elchin Mammad, a fervent human rights defender
and president of the Social Union of Legal Education of Sumgait
Youth (SULESY), after publishing a critical report on the human
rights situation in Azerbaijan. In October 2021, he was sentenced
to four years’ imprisonment for “theft resulting in serious damage”
and “illegally buying and possessing firearms accessories”, as the
police had apparently found jewellery and ammunition in his office.
Note More recently,
on 23 July 2023, Gubad Ibadoghlu, an Azerbaijani academic and chair
of the Democracy and Welfare Party, was arrested in a violent manner
and placed in detention on remand for four months. He is now charged
with the “production, acquisition or sale of counterfeit money by
an organised group” and “preparing, possessing or distributing religious
extremist materials”. It is believed that the charges against him
result from his activism and are politically motivated because of
his activities aimed at exposing and combating corruption.
Note According to his
family, the conditions of Mr Ibadoghlu's detention are also of great
concern, as he lacks appropriate medical care. According to the authorities,
Mr Ibadoghlu has constant access to medical care. He had not given
to the medical staff any information about having been tortured
and showed no signs of “mental and physical torture”. Currently,
he is kept in a cell that meets the “requirements for detention
and living conditions, including room temperature”.
91. In recent years, the European Court of Human Rights has found
breaches of the Convention in several cases concerning the arbitrary
arrest and detention of political opposition figures, civil society
activists, human rights defenders and critical journalists between
2013 and 2016, often in tandem with other infringements of their
human rights and fundamental freedoms. In 10 judgments it also found
breaches of Article 18 taken in conjunction with Article 5 of the
Convention based on misuse by the authorities of criminal law provisions
in relation to arrest and detention for purposes not permitted by
the Convention
Note In
one of these judgments –
Aliyev v. AzerbaijanNote –
the Court held that there was “a troubling pattern of arbitrary
arrest and detention of government critics, civil society activists
and human-rights defenders through retaliatory prosecutions and misuse
of criminal law in defiance of the rule of law”. The Court therefore
called on Azerbaijan to take general measures to “focus on the protection
of critics of the government, civil society activists and human-rights defenders
against arbitrary arrest and detention. The measures to be taken
must ensure the eradication of retaliatory prosecutions and misuse
of criminal law against this group of individuals and the non-repetition
of similar practices in the future”. The overturning of the criminal
convictions of Ilgar Mammadov,
Note Rasul
Jafarov and the applicants in the cases Rashad Hasanov and Others
and Azizov and Novrozlu by the Plenum of Supreme Court are a step
in the right direction. Nevertheless, the convictions of the other
applicants who were detained for similar reasons are still in force
and the Committee of Ministers continues to consider this issue as
part of its supervision of the execution of the five Court’s judgments
concerning nine applicants (see the above-mentioned group of cases
Mammadli).
Note These judgments have also been considered
in detail in the report on “reported cases of political prisoners
in Azerbaijan” and, in
its
Resolution 2322 (2020), the Assembly called on the Azerbaijani authorities
to promptly implement them.
Note
92. The Committee of Ministers is also examining the execution
of three judgments of the European Court of Human Rights concerning
disbarment of human rights lawyers between 2011 and 2015 (the Namazov group).
Note Some individual and general
measures have already been taken to implement these judgments: in April
2022, the applicant Aslan Ismayilov was restored in the Azerbaijani
Bar Association (ABA) following a reopening of proceedings ordered
by the Plenum of the Supreme Court; the number of disciplinary cases
in the ABA has decreased in recent years and the authorities indicated
that drafts amendments to the Law on Advocates and Advocacy Activity
were prepared by the Cabinet of Ministers. However, the Committee
of Ministers still awaits individual measures in the cases of the
two other applicants (MM. Namazov and Bagirov) as well as general
measures aimed at putting in place sufficient safeguards to prevent
undue disciplinary action against lawyers in the exercise of their
professional duties.
Note Recently, the Presidium
of ABA suspended the licence of lawyer Elchin Sadigov.
93. During our visit to Baku, we met with Mr Anar Bagirov, chairman
of the ABA, and his colleagues. We were informed about the possibility
of reinstatement of disbarred lawyers, following a judgment of the
European Court of Human Rights, if the Plenum of the Supreme Court
decided to reopen the case and to send it back to the lower court
for re-examination. We also heard about the adoption by the ABA
of a new code of ethics for lawyers in December 2020, the insufficient
number of lawyers in the country (compared with other countries) and
the low fees paid from the State budget to lawyers providing free
legal aid. As a result of the examinations organised by the ABA,
the total number of its members gradually increased and reached
2 334 (as of August 2023), while prior to its establishment, in
November 2004, the number of lawyers was at 370.
6.4.2 Right to freedom of assembly
94. Although the right to freedom
of assembly is guaranteed by the Constitution, its restrictive implementation
makes it illusory. The legislation, which sets a system of prior
notification has been replaced in practice by a system of prior
authorisation that is in breach of national law.
Note Systematically any
opposition demonstrations are instructed to be held at the far outskirts
of Baku with no public transport available. The last demonstration
in the centre of Baku took place in January 2019. Independent NGOs
and political parties have also difficulties in renting private
venues for hosting their events.
Note
95. The authorities often respond to peaceful assemblies by using
force against protesters, detaining them (the law permits administrative
detention for up to one month for resisting police, commonly applied
to peaceful demonstrator) or removing them from the area of the
demonstration
Note (very often
protesters demonstrating in other parts of the capital are driven
outside the city, sometimes several hundred kilometres away, by
special buses, before or after the protest). For example, in May
2022, a group of civil society activists was prevented from holding
a peaceful protest in Baku’s Fountain Square; more than 40 activists
were detained both and during the action.
Note The
authorities consider that the actions they take in response to peaceful
assemblies are compliant with national legislation.
96. The problem does not concern only political demonstrations
in Baku. Many rallies convened on social or economic grounds are
also prevented. On 13 March 2023, in Saatli a large group of residents
protested against water shortages. Police used excessive force including
rubber bullets and pepper spray. Three protesters were injured and
eight detained by the police during the action (out of them, five
were subsequently released and three sentenced to administrative
detention).
Note On
20 and 21 June 2023, the police broke up a demonstration in the
village of Soyudlu (in the Gadabay region), where dozens of residents
gathered to express their concerns in relation to the construction
of a chemical waste-disposal reservoir in the vicinity of their
village, which they believed would pose a serious risk to their
health. It was reported that police officers used disproportionate force
and rubber batons, tear gas, and pepper spray, against the peaceful
protesters, including many older persons. A dozen of demonstrators
have been injured and access of non-residents to the village has
been restricted.
Note According to the authorities,
public order was violated in the village, several police officers
and people working on the construction site were injured, the company's
property was damaged and pictures of those events were posted on
social media. People who deliberately did not obey police’s instructions
and injured police officers by throwing blunt tools on them were
only subject to administrative sanctions. Pepper spray had been
used in a very limited way.
97. Since 2016, the Committee of Ministers is examining the execution
of over 30 judgments of the European Court of Human Rights concerning
violations of the right to freedom of assembly throught the dispersal
of unauthorised peaceful demonstrations not posing any threat to
public order and the ensuing applicants’ arrest, unfair administrative
convictions and detention (the above-mentioned Gafgaz Mammadov group).
In its latest decision of March 2023, it regretted that the authorities
had not submitted in a timely manner an action plan on the measures
to rectify these structural problems and stressed that legislative reforms
were necessary in this group of cases.
Note
6.5 The issue of “political prisoners”
98. Since Azerbaijan’s accession
to the Council of Europe, concerns have been voiced by various international
instances about the arbitrary use of arrest and detention, and about
persons allegedly detained on politically motivated charges.
NoteNoteNoteNoteNoteNote
99. In its latest resolution on this subject –
Resolution 2322 (2020) “Reported cases of political prisoners in Azerbaijan”
– the Assembly condemned the continuing presence of prisoners detained
on politically motivated charges and the authorities’ denial of
this phenomenon. It stressed that the latter’s position was no longer tenable
in view of the numerous recent judgments of the European Court of
Human Rights, including those finding violations of Article 18 of
the Convention (see group Mammadli above). Although the Assembly welcomed
the reforms undertaken by the authorities with respect to the judicial
and penitentiary systems (such as those based on the Executive Order
of 2017 and the Presidential Decree of 2019), it concluded that
“there can no longer be any doubt that Azerbaijan has a problem
of political prisoners and that this problem is due to structural
and systemic causes” and that “much more remains to be done if the
problem is to be fully and durably resolved.” In a follow-up report
of June 2021, the rapporteur of the Committee on Legal Affairs and Human
Rights, Ms Thórhildur Sunna Ævarsdóttir (Iceland, SOC), deplored
the fact that most provisions of
Resolution 2322 (2020) had not been implemented by the Azerbaijani authorities
and that the problem of political prisoners in Azerbaijan h ad been
“neither duly recognised, nor adequately addressed by the authorities,
let alone resolved.”
Note
100. There are several lists of “political prisoners” established
by various domestic and international human rights organisations.
The most reliable list is drawn up by the Union for the Freedom
of Political Prisoners in Azerbaijan, and more precisely by activists
and former “prisoners of conscience” Leyla Yunus and Elshan Hasanov.
It refers to the definition of “political prisoner” contained in
Assembly’s
Resolution
1900 (2012). The
updated
list published on 19 April 2023 contained 182 cases: including
6 journalists and bloggers (including the above-mentioned Polad
Aslanov, Aslan Gurbanov, Rashad Ramazanov and Bakhtiar Hajiyev),
6 members of opposition parties and movements, 5 “political emigrants”
deported from Germany, 120 “peaceful believers” (mainly Shiite activists,
including members of the Muslim Unity Movement and persons convicted
in the Nardaran case), 8 persons convicted in the Terter case (see
below), 26 persons convicted in the Ganja case and 11 life term
sentenced (six former officers of the special police unit convicted
in connection with the 1995 mutiny, 3 former members of the Garangush
unit that fought in 1992-1993 in Karabakh, and 5 convicted in the case
of former Prime Minister Suret Huseynov). As of 31 July 2023, the
number of “political prisoners” increased to 204, the highest number
over the past years
Note On 4 October 2023, human rights
groups published an updated list of 235 persons, including 2 human
rights defenders, 6 journalists and bloggers, 11 opposition activists,
5 former political immigrants repatriated from Germany, and over
170 religious believers.
Note The authorities object to recognise
the list: they consider that 12 persons from it do not exist, 9 had
been released due to expiration of their terms of sentences before
the list was established and 9 have been pardoned. Investigation
is pending in respect of over 120 other persons from the list. The
authorities also point out that the lifetime prisoners referred
to in the list had been convicted for serious criminal offences,
including aggravated murders and acts of terror.
101. Every year, usually during the Navruz holidays, a number of
prisoners including political prisoners are released thanks to the
presidential pardon. This year, on 8 May, 801 convicts were granted
a pardon on the occasion of the 100-year anniversary of previous
President Heydar Aliyev. However, only two people considered as
“political prisoners” – journalist Elchin Mammadov and an opposition
party’s leader Ali Aliyev – were released. According to the authorities,
at least 10 persons whose names appeared in various lists by human
rights activists or organisations were pardoned on 8 May 2023. While
every release of unjustifiably detained person is welcome, this
cannot replace a structural reform which would prevent their detention
in the first place.
102. We raised this issue at almost every official meeting we had
in Baku. Most of our interlocutors replied that there were no “political
prisoners” in Azerbaijan, as there was no legally binding definition
of this term, and that some persons appearing on the list of the
Union for the Freedom of Political Prisoners in Azerbaijan were terrorists
linked to Iran or the Russian Federation. We specifically inquired
about the cases of Polad Aslanov, Bakhtiyar Hajiyev (both are on
the list of the Union for the Freedom for Political Prisoners of
Azerbaijan), Elchin Sadykov, Avaz Zeynali and Huseyn Abdullayev.
The Minister of Justice informed us about the charges brought against
them or for which they have been convicted. We also requested an
authorisation to visit a few persons allegedly detained on politically
motivated charges, but this was not granted. Nevertheless, the Minister
of Justice promised us that such visits might be organised during
our next visit to the country but this was not possible in November
2023 (see paragraph 6 above). During our visit to the Supreme Court,
we were also informed about the fact that this jurisdiction was
in contact with the parliamentary committee advising the President
of the Republic on pardons. We remain very much concerned about
this issue and will continue to closely scrutinise it.
6.6 Allegations of torture and ill-treatment
and conditions of detention
103. The CPT visited Azerbaijan
in January 2023 (
ad hoc visit)
and December 2020 (5th periodic visit), but its reports from these
visits have not been published yet. The latest CPT’s report concerning
this country was published in 2018 and refers to the CPT’s visit
of October 2017. In this report, the CPT’s overall impression was
that torture and other forms of physical ill-treatment by the police
and other law enforcement agencies (the State Customs Committee,
the State Border Service and the Armed Forces) and impunity remained
“systemic and endemic”, and that its findings suggested the existence
of a “generalised culture of violence among the staff of various
law enforcement agencies”.
Note It also concluded that legal
safeguards against ill-treatment, especially notification of custody,
access to a lawyer, access to a doctor and information on rights,
remain largely inoperative in practice. Concerning ill-treatment
in prisons, as during previous visits, the CPT delegation received
a number of allegations of deliberate physical ill-treatment by
custodial staff (in Ganja).
104. The CPT specifically refers to the “Terter case”, in which
20 military servicemen from the Terter barracks were arrested in
the end of April 2017 on charges of espionage and had been taken
to a disused army base near Terter. Their hands and legs were tied
with a rope or cuffed. The servicemen were made to undress completely
except for their underwear and brutally interrogated for periods
ranging from two to twelve days, using various methods of torture
(electric shocks, pulling out nails, burning, waterboarding, sleep
deprivation, deprivation of food and water).
Note The Assembly’s rapporteur on “Allegations
of systemic torture and inhuman or degrading treatment or punishment
in places of detention in Europe”, Mr Constantinos Efstathiou (Cyprus, SOC),
was particularly shocked about this case (see
statement). In his report, he noted that there had been 11 confirmed
deaths as a result of that torture. While some of those detained
and originally convicted have now been acquitted and released, others
remain in prison. Whereas the rapporteur concludes that no high-ranking officials
have been held to account for the use of torture in these cases,
Note the authorities indicate that the
Baku Military Court now examines four criminal cases in respect
of 19 servicemen, including high-ranking officials, accused of
inter alia torture, incitement to
suicide, illegal deprivation of liberty and premeditated infliction
of heavy damages to health. They also stress that measures have
been taken to address the CPT’s recommendations concerning the prevention
of torture.
Note
105. According to Mr Efstathiou’s report, torture and other forms
of ill-treatment have been used against members of the political
opposition, journalists and human rights defenders. This was particularly
the case of members of Azerbaijan Popular Front Party (Saleh Rustamov,
Agil Maharramov, and Babek Hasanov in 2019 and Alizamin Salayev
and Seymour Ahmadov in 2020 and 2021). In 2021, opposition leader,
Tofig Yagublu, sustained multiple injuries in police custody. It
is not clear whether effective investigations followed these allegations.
106. The European Court of Human Rights issued numerous judgments
concerning excessive use of force by law enforcement agents in the
course of the applicants’ arrest or custody and the lack of effective investigation
in this respect. Their implementation is now being examined by the
Committee of Ministers in the context of a group of cases,
Mikayil Mammadov v. Azerbaijan.
In December 2021, the Committee of Ministers recalled that “ill-treatment
in law enforcement is a repetitive and unresolved problem” and noted
with serious concern that these cases were pending before the Committee
for more than ten years, while over 70 new similar applications
were currently pending before the Court.
Note It also took note of some measures
taken by the authorities to prevent ill-treatment such as the possibility
for the detainees to have a swift medical examination, regular unlimited
meetings with their lawyers, sending uncensored letters and contacting
the Ombudsperson. It also invited the authorities to extend the
use of audio and video recordings during interrogations. As regards
measures to enhance effectiveness of investigations, it noted with
interest draft amendments to the Code of Criminal Procedure to ensure
immediate initiation of criminal proceedings into allegations of
ill-treatment as well as the increased fines imposed in such cases.
107. As regards conditions of detention, after its 2017 visit to
Azerbaijan, the CPT concluded that the material conditions in police
establishments were “on the whole acceptable” for the 72-hour custody
period and “even very good” in a few of the establishments.
Note As regards the situation in penitentiary
establishments, the CPT’s delegation noted some positive results
of the Executive Order by the President of the Republic of Azerbaijan “On
improvement of operation of the prison system, humanisation of criminal
policies and extension of application of alternative sanctions and
non-custodial preventive measures”, mainly as regards reducing prison overcrowding.
It deplored, however, the fact that the national as well as international
standards of 4 m² of living space per prisoner were still not observed
in pre-trial detention facilities visited (especially in Shuvalan
and Ganja). The authorities indicate that during its last
ad hoc visit of 12-19 December 2022,
the CPT delegation visited the Baku Pre-trial Detention Facility
and did not express any objections regarding the conditions of detention
and medical care of the prisoners.
108. According to the Council of Europe Annual Penal Statistics
on prison population – SPACE I Report (2022), Azerbaijan has one
of the highest incarceration rates within the Council of Europe
member States (217 prisoners per 100 000 inhabitants), after Türkiye
and Georgia. The total number of places in prisons is 25 471 and
they are 87,7% occupied. The cost of imprisonment per day and per
prisoner is of nearly € 8, which is the lowest figure after Ukraine
(the European average is of € 81).
Note
109. Since 2013, conditions of detention have been examined in
the context of the implementation of the group of cases
Insanov v. Azerbaijan. In March
2019, the Committee of Ministers welcomed the authorities’ agreement
to publish all previous reports drawn up by the CPT, following their
visits to the country, together with the authorities’ responses,
and strongly encouraged them to authorise also the publication of
all future CPT reports. The Committee of Ministers also “strongly
underlined the pressing need to continue efforts to improve conditions
of detention in general and invited the authorities to provide information
on the concrete measures taken or planned to improve the situation
in Gobustan Prison, which houses life-sentenced prisoners, and in
respect of which the Court specifically criticised the lack of sufficient
out-of-cell time and recreational and educational activities”.
Note
6.7 Other issues
6.7.1 Transnational repression
110. In its
Resolution 2509 (2023) “Transnational repression as a growing threat to the
rule of law and human rights”, the Assembly took note of and condemned
the use by Azerbaijani authorities of certain transnational repression
techniques such as renditions and cross-border abductions, mainly
against journalists. The report by Sir Christopher Chope (United
Kingdom, EC/DA) on which this resolution is based, refers to five
renditions, from Ukraine, Georgia, and Türkiye. It focuses on the
cases of Afgan Mukhtarli, an Azerbaijani investigative journalist,
vanished in May 2017 from Tbilisi and resurfaced in custody in Baku,
after what appeared to be a harrowing cross-border abduction, and
Fikret Huseynli, another Azerbaijani journalist, who claimed that Ukrainian
authorities failed to protect him from the attack and attempted
abduction by undercover Azerbaijani State agents tracking him down
in Kyiv in March 2018.
Note The European Court of Human
Rights has recently found Azerbaijan responsible for an extra-legal
transfer to Türkiye in circumvention of domestic and international
law safeguards (
Shenturk and Others v.
Azerbaijan).
111. During our visit to Baku, we inquired about the case of Huseyn
Abdullayev, an entrepreneur and former member of parliament (2005-2007).
He was arrested in April 2018 by anti-terrorism police in the centre
of Istanbul and then transferred to Azerbaijan within 24 hours despite
the fact that he had been granted political asylum in Germany. In
October 2019, he was sentenced to six years in prison on charges
of tax evasion, which were fabricated according to his lawyer. He
is now serving his sentence and his requests for earlier release have
been rejected by courts, although, according to his relatives, his
health is fragile. In August 2020, the United Nations Working Group
on Arbitrary Detention (UNWGAD) called for his immediately release
and considered that his deprivation of liberty by both Türkiye and
Azerbaijan was arbitrary and contrary to international law norms.
Note Previously,
in May 2019, the European Court of Human Rights found a violation
of the right to a fair trial (Article 6, paragraph 1, of the Convention)
due to domestic courts’ refusal to examine some evidence in a criminal
case lodged against Mr Abdullayev after he had openly criticised
the government in his capacity of a member of parliament.
Note
112. The report by Sir Christopher Chope also notes that incidents
of transnational repression by foreign States have been reported
in Azerbaijan. Apart from renditions to Türkiye, there have been
murders or attempted murders of Azerbaijani journalists and politicians
with suspected involvement of Iran. In March 2023, politician Fazil
Mustafa, known for his anti-Iranian statements, was shot and wounded
in Baku.
6.7.2 Freedom of thought, conscience and
religion
113. Azerbaijan is a country where
the Shi’ite majority (65 %) co-exists in perfect harmony with a
very sizeable Sunni minority (35%), and with other much less numerous
religions (various Christian groups, Jehovah’s witnesses, Jews,
etc.). Although the Azerbaijan Constitution guarantees secularism
and freedom of religion, there have been documented cases of prisoners
of conscience jailed and tortured for exercising freedom of religion,
strict State censorship or problems with registering of religious
associations. According to the “2022 Report on International Religious
Freedom”, released on 15 May 2023 by the US State Department, 22
individuals were in prison at the end of 2022 because of their religious
beliefs. Two religious groups – Jehovah’s Witnesses and the unregistered
Muslim Unity Movement – are particularly concerned.
114. The Jehovah’s Witnesses complain that there is still no civilian
alternative to military service for conscientious objectors, despite
a judgment of the European Court of Human Rights clearly calling
for a legislative action in this field (Mushfig
Mammadov and Others v. Azerbaijan). Therefore, they continue
to face the threat of criminal prosecution along with travel restrictions.
Moreover, the Azerbaijani authorities refused to recognise and register
their religious communities as “religious centres” in any city or
region outside Baku. There is also concern about access to religious
publications: although since 2015 all Jehovah’s Witnesses’ requests
for importing religious literature have been accepted, some bureaucratic
requirements delay the whole process of acceding to this literature.
It should be noted that the previous State’s practice of banning
the import of such literature was criticised by the European Court
of Human Rights in 2020 (see Religious Community
of Jehovah’s Witnesses v. Azerbaijan). According to the
authorities, the Jehovah Witnesses community in Azerbaijan does
not face any restrictions on their activity and literature imports.
115. The Muslim Unity Movement is considered by the government
as an extremist group and accused of receiving funds from Iran.
Many of its members reported physical abuses while in custody. This
was particularly the case of Abbas Huseyn, who was arrested during
the Nardaran incidents (a police operation that resulted in the
death of six people in 2015). He was sentenced to 20 years of prison
on numerous grave charges including attempted murder, incitement
to terrorism and coup attempt but considers that these charges were politically
motivated.
6.7.3 Freedom of movement and the right
to leave the country
116. Although the law provides for
these rights, authorities continue to prevent a number of opposition
figures, civil society activists and journalists from traveling
outside the country. For example, Ali Kerimli, chairperson of the
Azerbaijan Popular Front Party, has been prohibited from travelling
since 2006. Restrictions also apply to those who have been charged
or convicted of criminal offences or given suspended sentences
Note (see above). Moreover,
internal land border crossings have been closed to individuals since
the outbreak of Covid-19 pandemic in 2020, officially due to the
“risk of spread of viral infections.” This complicates the life
of numerous Azerbaijanis living abroad and wishing to return home.
Note
6.7.4 Combatting discrimination and the
situation of minorities
6.7.4.1 Combatting racism and intolerance
117. According to the latest report
of the European Commission against Racism and Intolerance (ECRI)
of March 2023,
Note over the past seven
years, Azerbaijan has developed good practices in education and
migrant integration. As regards education, human rights related
topics have been integrated into school curricula. Referring to
the integration of migrants, significant efforts were invested notably
to ensure their access to public services and benefits available
to them, to facilitate the issuance of work and residence permits.
Steps were also taken to regularise the legal status of migrants
irregularly present in Azerbaijan. Moreover, the Law on Information
and Protection of Information now prohibits internet providers and
individuals from distributing any information promoting violence,
religious extremism or inciting hatred and obliges them to take
down and remove such illegal content within eight hours.
118. However, there are also issues of concern. More needs to be
done in the fields of legislation and tackling inflammatory rhetoric
and hate speech, including at the highest political level. The authorities
should adopt an effective general anti-discrimination legislation
covering all grounds and areas of life. As regards countering hate
speech, ECRI is concerned about the use of a language in the public
sphere that propagates racist stereotypes and perpetuates animosities,
notably against Armenia, which is rooted in the context of the long-lasted
conflict and confrontations related to Nagorno-Karabakh.
Note
119. According to ECRI, the authorities should also take further
measures to ensure institutional independence and increase the effectiveness
of the Commissioner for Human Rights (Ombudsperson).This should
be done by i) ensuring a transparent selection and appointment procedure
of the Ombudsperson; ii) establishing a separate unit or department
within the structure of the Ombudsperson’s Office which is dedicated
to deal with non-discrimination and equality related work and complaints;
iii) increasing the capacity of the staff of the Ombudsman’s Office,
including those in regional offices, by providing them with ongoing training
and developing awareness raising activities on non-discrimination
and equality.
120. During our visit to Baku, we met the Ombudswoman, Ms Sabina
Aliyeva, who informed us about a forthcoming reform aimed at expanding
the remit of this institution. She also explained the measures taken
by her office to protect individuals’ rights, including the rights
of the most vulnerable persons such as children, persons with disabilities
and internally displaced persons. We welcomed the efforts made by
her office to ensure protection of human rights. After our visit,
on 9 June 2023, the Constitutional Law on Ombudsperson was amended
and the Ombudsperson’s powers were extended; they now also include
a monitoring and promotion mechanism for ensuring equality and elimination
of discrimination. According to the authorities, the amendments
also aligned the procedure for selection and appointment of the
Ombudsperson with international organisations’ recommendations.
6.7.4.2 The situation of persons belonging
to national minorities
121. According to the 2017 opinion
of the Advisory Committee on the Framework Convention for the Protection
of National Minorities (ETS No. 157, “Framework Convention”), Azerbaijan
society is broadly characterised by a climate of intercultural and
interreligious tolerance.
Note There is long-standing
tradition of living together in a multicultural society and the
authorities promote the concept of “Azerbaijani multiculturalism”.
Persons belonging to most minorities
Note receive
support from the authorities for expressing their cultural identity
and teaching of minority languages is relatively well developed
for the Russian and Georgian languages. Nevertheless, the general
restrictions on democracy, human rights and the rule of law in the
country also negatively impact persons belonging to national minorities,
notably with respect to their exercise of the right to freedom of
expression and freedom of association. Some of them have also experienced intimidation,
arbitrary arrest and imprisonment. In its Resolution on the implementation
of the Framework Convention for the Protection of National Minorities
by Azerbaijan adopted on 3 February 2021 (
CM/ResCMN(2021)7), the Committee of Ministers recommended to the Azerbaijani
authorities
inter alia to
adopt without delay “an adequate legal framework for the protection
of national minorities and comprehensive anti-discrimination legislation”,
to set up “a specialised body to co-ordinate issues relating to
national minority protection” and “provide the opportunity for national
minority representatives to effectively participate in decision-making
processes affecting them”. In October 2022, the authorities submitted
a new report, which is now being assessed by the Advisory Committee
in order to prepare its fifth opinion on the implementation of the
Framework Convention. On 23-27 November 2023, the Advisory Committee
visited the country. Azerbaijan is not party to the European Charter
for Regional or Minority Languages (
ETS
No. 148).
6.7.4.3 The situation of LGBTI people
122. The situation of LGBTI people
is particularly worrisome and was recently described in detail in
a report by the Committee on Equality and Non-Discrimination.
Note LGBTI people are often subject
to harassment, violence and hate speech, in full impunity. Moreover,
the majority of society has a negative view on them. The above-mentioned
case of Avaz Hafizli, an LGBTI activist who was murdered by his
cousin, illustrates well this phenomenon. Recently, Mr Lacroix,
who is also Assembly’s general rapporteur on the rights LGBTI persons, condemned
the detention and ill-treatment by police of protesting LGBTI people
and activists following a gathering that had taken place in Baku
on 23 May 2023 in connection with the detention of several transgender women.
Note During our visit to
Baku, we heard from the authorities that they disagreed with his
statement.
123. In
Resolution 2418
(2022) based on Mr Lacroix’s report, the Assembly stated that
Azerbaijan should adopt “effective legislation and policies to strengthen
action against discrimination based on sexual orientation, gender
identity, gender expression and sex characteristics” and addressed
a number of concrete recommendations to the authorities. This recommendation
was also repeated by ECRI in its most recent report on Azerbaijan.
Note Moreover, ECRI
recommended to the Azerbaijani authorities to reinforce their responses against
hate speech by setting up an inter-institutional working group to
develop a comprehensive strategy to tackle effectively LGBTI-phobic
hate speech, and to set up a data collection system on the number
of reported incidents of LGBTI-phobic hate crimes.
