Lawyers and human rights defenders under the protection of the ECHR

JUDGMENT

Aliyev v. Azerbaijan 20.09.2018  (no. 68762/14 and 71200/14)

see here

SUMMARY

Lawyers-human rights defenders. An lawyer is arrested and detained for financial irregularities by the legal organization he was the chairman. Infringement of the right to liberty and security as he was deprived of his liberty without valid indications of guilt and the domestic courts approved his prosecution without real and independent examination of the lawfulness of his detention. Infringement of the right to privacy as an investigation was carried out in his office and home without any justified justification that there was evidence of the offenses he allegedly committed. Restrictions were set in order to punish the lawyer, and they also had a suspensive effect on the wider activity of NGOs.

PROVISIONS

Article 3

Article 5 §§ 1 and 3

Article 5 § 4

Article 8

Article 18

Article 11

PRINCIPAL FACTS

The applicant, Intigam Kamil oglu Aliyev, is an Azerbaijani national who was born in 1962 and lives in Absheron (Azerbaijan). The facts of his case are similar to those in Rasul Jafarov v. Azerbaijan. Mr Aliyev is a well-known human rights lawyer who has represented applicants before the Strasbourg Court. He is also chairman of an officially registered association called the Legal Education Society. In June 2014 he presented a report on the side-lines of a Council of Europe Parliamentary Assembly session on the human rights situation in Azerbaijan.

In May 2014 the Prosecutor General’s Office opened a case on alleged financial irregularities at various non-governmental organisations, including Mr Aliyev’s association. In August he was charged with illegal entrepreneurship, large-scale tax evasion and aggravated abuse of power. The investigator in the case stated that Mr Aliyev had failed to inform the authorities that he had become head of a legal entity – his association – and had omitted to register grants from donors. He had also signed agreements on various sums without legal authority and had deposited money andmade payments to himself and others in the guise of salaries and service fees. Mr Aliyev had thus, according to the authorities, conducted illegal entrepreneurial activity, had profited from that and had avoided paying tax. He was arrested and remanded in custody for three months, with his appeals against detention being dismissed. His home and his association’s office were also searched.

Documents and various objects were seized, including case files on applications to the Court. The domestic courts rejected his complaints that those measures had been unlawful. In December 2014 the Prosecutor General’s Office brought new charges: high-level embezzlement, forgery by an official and very large-scale tax evasion. He was convicted in April 2015 and given a sentence of seven and a half years’ imprisonment, reduced to a five-year suspended sentence in March 2016, when he was released from detention. His trial is the subject of a separate application.

THE DECISION OF THE COURT

Article 8

The Court highlighted the especially strict scrutiny required when it came to the searching of lawyers’ premises as the persecution and harassment of members of the legal profession struck at the very heart of the Convention system. The Court found in particular that the domestic court had allowed the search on vague grounds, without mentioning any facts related to the specific crimes of abuse of power and forgery. It did not appear that the court had satisfied itself that there were reasonable suspicions against Mr Aliyev and that relevant evidence might be found at his office and home.

Overall, the search had not pursued any of the legitimate aims set out under Article 8 to justify an interference with someone’s private life and there had been a violation of this provision.

Article 5 

The Court also found a violation of this provision of the Convention because the domestic courts had, as in the case of Rasul Jafarov, failed to verify the existence of a reasonable suspicion underpinning Mr Aliyev’s arrest and detention. In essence, the courts had automatically endorsed the prosecution case without any genuine, independent review of the lawfulness of his detention.

Article 5 §§ 1 and 3

Mr Aliyev complained that the authorities had failed to provide reasonable and well-documented evidence that he had committed the crimes in question. The Government rejected that argument. Referring to the principles on “reasonable suspicion” set down in Rasul Jafarov, the Court said that in particular there had to be facts or information which would satisfy an objective observer that the person concerned may have committed the offence involved. Similarly to the applicant in Rasul Jafarov, the Court found that Mr Aliyev had been charged with criminal acts for failings which were either administrative (failure to inform the authorities he had become head of the association) or which related to a reporting requirement (notifying the grants).

Furthermore, the prosecuting authorities had never produced any documents to back up their charge of illegal entrepreneurial activity or that he had generated a profit from the grants, meaning there could be no reasonable suspicion of tax evasion. It was also difficult to accept the charges of embezzlement and forgery: the donors, who had given money voluntarily, had never complained about a misappropriation of funds, while the authorities had not produced any evidence that the applicant might have committed the crime of forgery. The Court found that Mr Aliyev had been deprived of his liberty without a “reasonable suspicion” and there had been a violation of Article 5 § 1 of the Convention. Given that finding, it saw no need to examine separately the issues raised under Article 5 § 3.

Article 3

The Court found that Mr Aliyev’s medical care in detention had not led to a violation of Article 3 as he had not shown convincingly that it had been inadequate. It found a violation of this provision related to his pre-trial detention between 9 to 12 August 2014 owing to a lack of space in his cell, aggravated by having to share beds with other inmates.

However, as of 12 August the conditions of his detention had complied with the Convention. The Court rejected his complaint about the conditions of his transport to the court on 24 October 2014 as he had not used all the available domestic legal remedies before turning to Strasbourg.

Article 18

Mr Aliyev complained that putting him in detention and seizing his files on cases before the Court had aimed at punishing and silencing him as a critic of the Government and human rights activist. The Court noted the findings of violations it had already made in this case and that Mr Aliyev and other human rights activists had been strongly criticised by public officials. It noted the arbitrary manner of the search of his home and office, including the fact that the authorities had not only taken files related to the association, but also to cases before the Court.

It noted that the context of the case was the increasingly harsh and restrictive legislative regulation of non-government organisations in Azerbaijan and that the steps taken against Mr Aliyev had restricted his freedom of association and his ability to conduct his human rights activity in a meaningful way. The measures had also had a chilling effect on wider NGO activity. Given all the circumstances the Court found that the restrictions on Mr Aliyev had actually been aimed at silencing and punishing him, rather than for a legitimate purpose under the Convention. There had therefore been a violation of Article 18. Given its other findings, it saw no need to deal separately with the Article 11 complaint.

Article 46

The Court noted its finding that the actions taken against Mr Aliyev had been aimed at silencing and punishing him. It had found similar violations in cases against Azerbaijan, meaning they could not be considered as isolated incidents. In fact, the judgments reflected a troubling pattern of arbitrary arrest and detention of critics of the government, and civil society and human rights activists. It was already dealing with a number of similar applications and stressed as a matter of concern that the domestic courts, being the ultimate guardians of the rule of law, had failed to protect applicants from arbitrary arrest and had automatically endorsed the prosecution’s detention applications in those cases.

Given repeated violations of Article 18, it considered that the State had to focus on protecting critics of the Government, civil society activists and human rights defenders from arbitrary arrest and detention. Any measures had to ensure that there were no more retaliatory prosecutions and misuse of the criminal law against that group of people.

Any individual measures, aimed, among other things, at restoring Mr Aliyev’s professional activities, in order to put an end to the breaches of the Convention and to make reparation, was best dealt with by the Committee of Ministers of the Council of Europe given the variety of ways this could be done, the Court added.

Article 41

The Court held that Azerbaijan was to pay the applicant 20,000 euros (EUR) in respect of nonpecuniary damage and EUR 6,150 for costs and expenses for the proceedings before the Court(echrcaselaw.com editing). 

 


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