The arrest of a well-known opposition activist, his detention and his confinement in a metal cage in court have violated the ECHR.

JUDGMENT

Natig Jafarov v. Azerbaijan 7-11-2019 (no. 64581/16)

see here

SUMMARY 

Human rights defenders and the ECHR. Arrest of a prominent activist, his temporary detention and confinement in a metal cage in court.

His case is similar to that of other opposition and civil society activists in Azerbaijan, cases that the Court has already dealt with.

In particular, the Court found that there was no reason to institute criminal proceedings against the applicant and that he was arrested and detained without reasonable suspicion of having committed an offense.

The Court reiterated its earlier findings on the type of measures applied to civil society activists and opposition parties, such as the applicant, aimed at curbing their activities. It found that the measures against the applicant were intended to curtail his activities.

Unanimous violation of Article 3 (prohibition of inhuman or degrading treatment) of the ECHR, violation of Article 5 § 1 (right to liberty and security) and Article 5 § 4 (lack of effective judicial review of detention) and, violation of Article 18 ( limits on the use of restrictions on rights) in conjunction with Article 5

PROVISIONS

Article 3

Article 5

Article 18

PRINCIPAL FACTS

The applicant, Natig Mehman oglu Jafarov, is an Azerbaijani national who was born in 1972 and lives
in Baku (Azerbaijan).

In 2016 a political movement called Republican Alternative Civic Movement (REAL), of which he was
a co-founder, decided to campaign against amendments to the Constitution proposed by a draft
Referendum Act. Among other things, the changes aimed at extending the presidential term to
seven years from five and introduce the post of vice-president. The referendum was set for
September 2016.

In August 2016 the applicant was arrested on the criminal charges of illegal entrepreneurship and
aggravated abuse of power. The charges were based on his having allegedly failed to register grants
received from the United States National Endowment for Democracy for projects carried out
between 2011 and 2014, placing the sums received in various bank accounts and making payments
to himself and others involved in the projects in the guise of salaries and service fees.

He was placed in pre-trial detention for four months, a decision which he appealed several days
later. He was held in a metal cage in the court during the appeal hearing, which confirmed the first-instance decision. In late August REAL decided to stop campaigning against the constitutional
amendments, owing to the arrests of some of its members, including the applicant.

Mr Jafarov was released in early September 2016 after the prosecutor in charge of the case asked
the court to discontinue the preventive measure as the grounds justifying his detention no longer
existed. The referendum took place as planned and the constitutional amendments received
overwhelming approval.

THE DECISION OF THE COURT…

Article 3

The Court reiterated its case-law on holding people in cages during court hearings as treatment
which is an affront to human dignity and as degrading treatment in violation of the Convention.
It took note of the Government’s argument that Mr Jafarov’s case had involved a closed pre-trial
detention hearing, with only legal professionals and the court clerk present, meaning he had not
been publicly exposed. The Court reiterated that not being in public view would not necessarily
prevent a given treatment from being degrading.

Having regard to the objectively degrading nature of holding someone in a metal cage, the Court
found that Mr Jafarov had suffered a violation of his rights under Article 3.

Article 5

The applicant argued that he had been charged with similar crimes in similar circumstances as the
applicant in Rasul Jafarov v. Azerbaijan and that for the reasons set out in that judgment there had been no reasonable suspicion that he had committed a criminal offence. He also complained that the courts had failed to provide relevant and sufficient reasons justifying his detention.

The Government submitted that there had been enough evidence, facts and information to justify
the charges under the Criminal Code. It also provided a copy of a financial expert opinion of June
2015 prepared by the Forensic Examination Centre of the Ministry of Justice. The applicant’s
pre-trial detention had also been justified and the courts had given proper reasons for it.

The Court noted its findings in Rasul Jafarov that the charges of illegal entrepreneurship and abuse
of power in that case had stemmed from a failure to register grants, which, according to the
authorities, had resulted in de facto commercial activity. It had found, among other things, that the
registering of grants was a reporting requirement and that a failure to carry out that procedure was
an administrative offence which led to a fine. It had also held that the Government had not provided
any evidence in that case on which to found a suspicion of illegal entrepreneurship or abuse of
power.

It saw no reason to depart from those findings in this case. It noted the Government’s reference to
the June 2015 financial expert opinion, but observed that that document had never been presented
to prosecutors during the applicant’s pre-trial detention proceedings. In addition, the report did not
show that he had used grant money to generate a profit or had engaged in commercial activity.

The Court concluded that the minimum standard of Article 5 § 1 (c) for the reasonableness of a
suspicion required for arrest and pre-trial detention had not been and there had thus been a
violation of Article 5 § 1. The Court did not find it necessary to examine whether the courts had
provided proper reasons for the applicant’s detention under Article 5 § 3.

For the same reasons as in Rasul Jafarov, the Court also found a violation of Article 5 § 4 owing to
the lack of an effective review of the lawfulness of the applicant’s detention.

Article 18 in conjunction with Article 5

The applicant argued that his right to liberty had been restricted for purposes other than those set
down in the Convention. He alleged that his arrest and pre-trial detention had in fact been aimed at
silencing him and punishing him for his activities in REAL and its campaign against the referendum.
The Government rejected that argument, noting in particular that he had been released before the
referendum had actually taken place.

The Court reiterated its case-law on Article 18. It noted that it had to examine whether there was
proof that the authorities’ actions against Mr Jafarov had been driven by an ulterior motive amid a
pattern observed in earlier judgments showing the arbitrary arrest and detention of government
critics, civil society activists and human rights defenders.

Firstly, it noted that the applicant was a political activist who had been involved in the campaign on
the 2016 referendum. Secondly, his situation also had to be viewed on the background of the arrest
of other notable civil society activists and human rights defenders on similar grounds as him.

Thirdly, the timing of his arrest was significant: it had taken place during the active phase of the
registration process for the referendum in which REAL had said it would campaign against the
planned amendments to the Constitution. He had been released after REAL had said that it would
not take part in the campaign after the arrest of some of its members, including the applicant.

The Court also considered the reprehensibility of the ulterior motive, noting that the arrest and
detention had not only affected the applicant and other opposition activists and supporters, but also
the very essence of democracy as a means of organising society, in which individual freedom could
only be limited in the general interest.

It held that the totality of the factors in the applicant’s case indicated that the ulterior purpose of his
arrest and detention had been to punish him for his active political engagement and to prevent him
from taking part in the referendum campaign as a member of the opposition.

The Court thus held that the restriction on his liberty had been imposed for reasons other than those
set down in Article 5 § 1 (c) of the Convention and there had been a violation of Article 18 in
conjunction with Article 5. Given its other findings, the Court saw no reason to examine separately
the applicant’s complaint under Article 11.

Just satisfaction (Article 41)

The Court held that Azerbaijan was to pay the applicant 15,000 euros (EUR) in respect of
non-pecuniary damage and EUR 2,000 in respect of costs and expenses.


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