European Court: Rasul Jafarov’s arrest and detention were politically-motivated
Published: 17 Mar 2016
The European Court of Human Rights ruled today that the arrest and detention of prominent human rights defender Rasul Jafarov was unjustified and was aimed at punishing him for his human rights work. The Court’s judgment came just hours before it was announced that Rasul would be released as part of President Ilham Aliyev’s Novruz pardon list.
Rasul is represented by EHRAC Legal Consultant Ramute Remezaite and by Khalid Bagirov, a lawyer based in Baku.
“The European Court of Human Rights did not only establish that Rasul Jafarov’s arrest and pre-trial detention since 2 August 2014 was unlawful; more importantly, it recognised that the actual purpose of his detention was to punish him for his human rights activities. It is the first time that the Court has found a violation of Article 18 based on the repression of human rights defenders as a result of their human rights activity. The judgment is of significant importance in the current repressive climate in Azerbaijan where many other human rights defenders, lawyers and journalists such as Intigam Aliyev and Khadija Ismayilova languish in prison as victims of the abusive application of the criminal justice system by the authorities.”
Ramute Remezaite, EHRAC Legal Consultant
“This is the second judgment finding a violation of Article 18 against Azerbaijan. And one which shows that such violations are typical in Azerbaijan. Azerbaijan must demonstrate that it observes the principle of pacta sunt servanda and abides by its international obligations.”
Khalid Bagirov, lawyer, Baku
According to the Court, Rasul’s arrest and detention were politically-motivated, served to punish him as a government critic and silence him as an NGO activist and human rights defender, and had the overall aim of discouraging others from engaging in such activities. Finding a violation of the right to liberty, the Court ruled that there was insufficient evidence to justify the charges against Rasul or his lengthy pre-trial detention, and that the lawfulness of his detention was not properly reviewed by the domestic courts.
Rasul is a well-known civil society activist and human rights defender, and one of the founders of Human Rights Club (HRC). He coordinated the Sing for Democracy campaign, timed to coincide with the Eurovision Song Contest in Baku in 2012; the campaign drew attention to human rights violations in Azerbaijan. He had been actively involved in compiling a list of political prisoners in Azerbaijan, which was used for campaigning locally and at the Council of Europe.
Rasul was arrested on 2 August 2014, during the State crackdown on civil society which began that summer, and charged with illegal entrepreneurship, large-scale tax evasion and abuse of power. These charges centred on the non-registration of HRC as a legal entity with the authorities, the subject of a separate application to the European Court. Additional charges of misappropriation and official forgery were later brought against him. His appeal against his arrest and pre-trial detention was dismissed by the Baku Court of Appeal in August 2014. On 16 April 2015, Rasul was convicted and sentenced by the Baku Serious Crimes Court to six and a half years in prison. His conviction and sentence were internationally condemned, including by the EU, the United States and the UK.
Rasul lodged a further complaint in January 2015, alleging that the suspension of his lawyer, Khalid Bagirov’s licence to practice law, as a result of which he was not permitted to meet him in prison, constituted an infringement of the effective exercise of his right of individual petition (Article 34 ECHR). On 29 April 2015, Rasul lodged a second application to the European Court challenging the repeated extension of his pre-trial detention (under Article 5 ECHR); this application was joined to his initial application.
In a comprehensive judgment, the Court found three violations of the ECHR, regarding Rasul’s arrest and detention (the right to liberty), the politically-motivated nature of the charges brought against him (the limitation on use of restriction on rights) and the impediments faced by his lawyer when visiting him in prison (the right of individual petition to the European Court).
Right to liberty (Article 5)
Reviewing the evidence and information provided by the Azerbaijani Government, the Court ruled that the material did not demonstrate a reasonable suspicion justifying Rasul’s arrest and continued detention. It drew attention to the fact that the Government could not point to any provision criminalising an alleged failure to register grants. It therefore held that Mr Jafarov had been unlawfully deprived of his liberty.
Limitation on use of restriction on rights (Article 18)
In considering Rasul’s complaint that the charges brought against him were politically-motivated, the Court held that the Government had violated Article 18 of the Convention, in conjunction with Article 5:
[T]he totality of the above circumstances indicates that the actual purpose of the impugned measures was to silence and punish the applicant for his activities in the area of human rights… [T]he restriction of the applicant’s liberty was imposed for purposes other than bringing him before a competent legal authority on reasonable suspicion of having committed an offence.” (para. 162)
It took note of the general circumstances (including the increasingly harsh regulation of NGO activity), the numerous statements of high ranking Azerbaijani officials criticising local NGOs and their leaders and the fact that Rasul’s case cannot be viewed in isolation.
Right of individual petition to the European Court (Article 34)
By not permitting Rasul to meet his legal representative before the ECtHR, the Court held that Azerbaijan had failed to comply with its obligations not to hinder the effective exercise of his right to individual petition.
This is the European Court’s first judgment to address the serious and ongoing situation of human rights defenders in Azerbaijan, many of whom remain behind bars. Cases lodged by Intigam Aliyev, Leyla and Arif Yunus, Anar Mammadli, Khadija Ismayilova and others are pending before the Court. The strong statements made by the Court today on the restrictions that Azerbaijani human rights defenders continue to face, including their imprisonment for their work, will set an important precedent in deciding these cases.
The Court’s judgment in Rasul’s case coincided with President Ilham Aliyev’s Novruz pardon list ordering the release not only of Rasul, but also of a number of other activists and journalists. Those on the list are expected to be released on 18 March 2016.
 The Court will consider the legitimacy of the suspension of Khalid’s license in a separate case, currently pending communication.