“Freezing” of bank accounts and travel bans to NGOs and its President, resulted in hindering their work! Conviction from the Court!
JUDGMENT
Democracy and Human Rights Resource Center and Mustafayev v. Azerbaijan 14.10.10 (app. no. 74288/14 and 64568/16)
SUMMARY
Judgments against the applicants, who are members of human rights NGOs, and its President, during a criminal investigation launched against some NGOs in 2014 for alleged financial irregularities.
The ECtHR noted that none of the applicants had been named in the criminal proceedings against the NGO. It therefore found that the authorities ‘decisions to freeze the applicants’ bank accounts and impose a travel ban on Mr Mustafayev were illegal. On the other hand, the imposition of a travel ban on him was in accordance with national law but was not intended to be lawful.
According to the ECtHR, such restrictions on the applicants’ rights were intended to punish them for their work in the field of human rights and to prevent them from continuing their activities.
The European Court of Human Rights has ruled that there has been a violation of Article 1 of the First Additional Protocol (protection of property) of both applicants as regards the freezing of their bank accounts, a violation of Article 13 (right to an effective remedy) in conjunction with Article 1 of the First Additional Protocol to the European Convention for both applicants, infringement of Article 2 of Protocol 4 (freedom of movement) of the Convention due to travel bans imposed on Mr Mustafayev by prosecuting authorities and national courts, infringement of Article 18 taken in conjunction with Article 1 of the First Additional Protocol for both applicants and in conjunction with Article 2 of Protocol 4 in respect of Mr Mustafayev.
Strasbourg considered that the Committee of Ministers of the Council of Europe was the most appropriate body to evaluate and monitor specific measures for the protection of human rights activists and defenders in Azerbaijan and for the removal of obstacles to their activities.
The ECtHR awarded an amount of EUR 23,000 for non-pecuniary damage to the applicants and EUR 1,900 for costs.
PROVISIONS
Article 13
Article 18
Article 46
Article 1 of the First Additional Protocol
Article 2 of the 4rth Additional Protocol
PRINCIPAL FACTS
The first applicant is Democracy and Human Rights Resource Centre, a non-governmental
organisation specialising in legal education and protection of human rights. The second applicant,
Asabali Gurban oglu Mustafayev, an Azerbaijani national, is a lawyer and member of the Azerbaijani
Bar Association. He is also the founder and chairman of the first applicant.
In 2014 the Prosecutor General’s Office opened a criminal case in connection with alleged financial
irregularities in the activities of a number of non-governmental organisations. The applicants were
not named in the proceedings, but Mr Mustafayev was questioned on several occasions between
2014 and 2016.
The Nasimi District Court issued a judicial order in May 2014 against the applicant association in
respect of all of its bank accounts pending the investigation. It referred to 11,993 US dollars received
by the NGO from the United States of America’s National Endowment for Democracy as constituting
the object of a criminal offence. Mr Mustafayev found out about the order in July 2014 when going
to the local branch of his bank. All his appeals were however dismissed for missing the three-day
deadline.
Mr Mustafayev discovered in December 2014 that his personal bank accounts had also been frozen
pending the investigation. The judicial order was based on Mr Mustafayev, who is a legal
representative before the European Court in a large number of cases, having received 850 euros
from the Council of Europe by way of legal aid.
Mr Mustafayev also had two travel bans imposed on him by the prosecuting authorities and by the
domestic courts .
He found out about the first, imposed by the prosecuting authorities, when he was stopped from
taking a plane from Baku to Tbilisi in September 2015. The restriction was lifted in July 2019.
The second was imposed in proceedings against the applicant association for recovery of a tax debt.
Mr Mustafayev argued that there was no reason for restricting his right to leave the country as there
was enough money in the association’s bank accounts to pay the tax debt. All his appeals were
unsuccessful and the travel ban still stands.
Both applicants complained under Article 1 of Protocol No. 1 (protection of property) and Article 13
(right to an effective remedy) about the freezing of their bank accounts, while Mr Mustafayev
complained under Article 2 of Protocol No. 4 (freedom of movement) about the travel bans imposed
on him by the prosecuting authorities and by the domestic courts.
The applicants also alleged that those measures had been politically motivated. According to them,
the restrictions had been part of a targeted repressive campaign against human-rights defenders
and NGO activists in Azerbaijan, and had been intended to paralyse their work, in breach of Article
18 (limitation on use of restrictions on rights) taken in conjunction with Article 1 of Protocol No. 1
and Article 2 of Protocol No. 4.
THE DECISION OF THE COURT…
Article 1 of Protocol No. 1 (protection of property)
The Court concluded that the applicants had not belonged to any of the categories of persons to
whom the measure of freezing a bank account could be applied under the domestic law.
In particular the applicants had not been charged with any criminal offence within the framework of
the criminal case against the NGOs or in other proceedings. It was undisputed by the parties that Mr
Mustafayev had not been formally accused of any crime, but had only been questioned on several
occasions. Moreover, the courts had not even referred to any legal provision as a basis for its order
freezing the applicant’s account.
The interference with the applicants’ rights could thus not be considered lawful within the meaning
of Article 1 of Protocol No. 1.
Article 13 (right to an effective remedy) in conjunction with Article 1 of Protocol No. 1
The Court noted that the domestic authorities had failed to provide the applicants with a copy of the
relevant judicial orders. That had deprived them of their right to challenge those orders before the
courts.
The Government had also failed to show in their submissions that there had been any other remedy
by which the applicants could have challenged the orders and the continuation of the restrictions
imposed on them.
The Court concluded that the applicants had not in practice had an effective remedy for their
complaint under Article 1 of Protocol No. 1.
Article 2 of Protocol No. 4 (freedom of movement)
As concerned the travel ban imposed on Mr Mustafayev by the prosecuting authorities, the Court
referred to a previous case in which it had examined an identical complaint based on the same facts.
In that case it found that the ban imposed on the applicants, who had only been witnesses in
criminal proceedings, in the absence of any judicial decision had not been “in accordance with the
law”. The Court considered that that finding applied in the applicant’s case and accordingly held that
there had been a violation of his right to leave his own country.
The travel ban aimed at securing payment of taxes could on the other hand be imposed in
accordance with the domestic law, the Migration Code and the Code of Criminal Procedure.
However, neither the tax authorities nor the domestic authorities had considered any alternative to
the travel ban, such as deducting the alleged tax debt from the applicants’ bank accounts or seizing
assets, despite Mr Mustafayev’s explicit request. Nor had it been argued how the imposition of the
travel ban had been necessary for the collection of the debt.
The Court therefore concluded that the interference with Mr Mustafayev’s right to leave his country
had not pursued any legitimate aim, in violation of Article 2 of Protocol No. 4.
Article 18
The Court considered that there had been an ulterior purpose for the restrictions on the applicants’
rights, namely to punish them for their work in the area of human rights and to prevent them from
continuing those activities.
The Court was particularly concerned by the fact that Mr Mustafayev had had his bank account
frozen because of a transfer of money for legal aid in proceedings before it.
The Court considered the applicants’ situation against the backdrop of a series of cases it had
already decided concerning a pattern of arbitrary arrests and detention of government critics, civilsociety activists and human-rights defenders in Azerbaijan. Various human-rights organisations have also reported on the freezing of bank accounts and travel bans against civil-society activists in the
country.
There had therefore been a 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.
Article 46 (enforcement)
The Court decided that the Committee of Ministers of the Council of Europe was best placed to
assess and supervise specific measures for the protection of civil-society activists and human-rights defenders in Azerbaijan and for the removal of any impediment to the exercise of their activities.
Article 41 (just satisfaction)
The Court held that Azerbaijan was to pay 8,000 euros (EUR) to the applicant association and
EUR 15,000 to Mr Mustafayev in respect of pecuniary damage and non-pecuniary damage.
EUR 1,900 was awarded in respect of costs and expenses.
