Democracy and Human Rights Resource Centre and Mustafayev v Azerbaijan: the Court’s expanding Article 18 practice to confront states’ ulterior purposes
By Dr. Ramute Remezaite, Senior Legal Consultant, European Human Rights Advocacy Centre; originally published in Strasbourg Observers, January 21, 2022.
Article 18 of the European Convention on Human Rights (the Convention), prohibiting the Council of Europe member states’ acting in bad faith, has been put under the spotlight by litigators and the Court in recent years, exposing ulterior practices by states. Azerbaijan’s particularly repressive context for civil society and the political opposition, involving multiple tactics by the authorities, has been successfully challenged before the Court by litigators such as the European Human Rights Advocacy Centre (EHRAC), which systematically employed Article 18 of the Convention as a strategy to address the persecution of Azerbaijani critical voices. Such consistent and comprehensive litigation in Azerbaijani cases has contributed to the Court gradually expanding its once very limited application of Article 18 to new protected groups and qualified rights. The unanimously adopted judgment in the case of Democracy and Human Rights Resource Centre and Mustafayev v Azerbaijan concerning the imposition of travel bans on a human rights lawyer and the freezing of his personal bank accounts and those of his human rights NGO is the first case in which the Court established a violation of Article 18 in relation to the right to freedom of movement and the right to protection of property. The Court also indicated measures to the Government of Azerbaijan under Article 46 of the Convention, consistently with its other judgments relating to repression of human rights lawyers in Azerbaijan.
Background and facts of the case
This case concerns the freezing of bank accounts of an Azerbaijani human rights defender and lawyer, Asabali Mustafayev, and those of his NGO Democracy and Human Rights Resource Centre, and the imposition of two travel bans on him by the Azerbaijani authorities in 2014. Such restrictions were imposed on the applicants as a part of the wider criminal investigation launched by the Azerbaijani authorities against non-governmental organisations in the summer of 2014, in an unprecedented crackdown on civil society. The Prosecutor General opened a wide ranging criminal case under charges of abuse of power and forgery in connection with alleged irregularities in the financial activities of a number of human rights organisations in the country, following which several leading human rights defenders and NGO leaders, including Intigam Aliyev, Rasul Jafarov and Leyla Yunus, were arrested (see the Court’s judgments, for example, in Rasul Jafarov v Azerbaijan and Aliyev v Azerbaijan). Others, including Mr Mustafayev, were summoned for interrogations about their human rights activities and subjected to restrictions such as travel bans and the freezing of their bank accounts.
The first travel ban was imposed by the prosecuting authorities in 2014, which Mr Mustafayev learnt about a year later, in September 2015 when he attempted to take a flight to attend an event abroad. He was never provided with an official decision of the authorities and was only informed in July 2019 that the ban was lifted as ‘no longer necessary’. The second travel ban was imposed by a domestic court in October 2015, following a request from the tax authorities for his alleged failure to pay a tax debt resulting from an investigation by the tax authorities into the activities of the same human rights organisations that were subjected to criminal investigation. Furthermore, the applicants were never informed about the court hearing in which the decision was made to freeze their bank accounts, which Mr Mustafayev later learnt about when he went to his bank, and they were not served a copy of the decision. He later learnt from a court decision that the money transferred from the Council of Europe to him as legal aid for his work on cases before the European Court of Human Rights (the Court) was considered as the ‘object of a criminal offence’, which was used ‘as its instrument’.
The Court’s judgment
In this case, the Court was tasked to decide if the applicants’ rights to protection of property and Mr Mustafayev’s freedom of movement were violated, and assess if they had access to effective domestic remedies to challenge it. Furthermore, perhaps most importantly in Azerbaijan’s repressive context, the Court also had to decide if the domestic authorities had acted in bad faith and had any ulterior purposes behind such restrictions. The Court, sitting as a Chamber of 7 Judges, has reached a unanimous decision on these issues.
The Court ruled that the freezing of the bank accounts was unlawful, in violation of Article 1 of Protocol 1 of the Convention, in that Mr Mustafayev did not belong to the categories of persons to whom such a restriction could be applied in the criminal case, i.e. accused persons, as he was called for questioning as a witness. Similarly, the Court established that the prosecuting authorities acted unlawfully, in violation of Article 2 of Protocol 4 of the Convention, in imposing the first travel ban on the applicant in the absence of any judicial decision, and which the applicant has never been informed – a practice that the Court has also identified in the case of Mursaliyev and Others v Azerbaijan, relating to a group of other witnesses in the same criminal investigation, primarily independent journalists.
With regard to the second travel imposed on Mr Mustafayev, this time by a court decision, the Court recognised that a legal basis for such a restriction existed in the domestic law and that it could be justified for the purpose of securing the payment of taxes, i.e. for the maintenance of public order and protection of the rights of others. It, however, decided in the applicants’ case that the Government failed to demonstrate that the imposition of the travel ban pursued any of the legitimate aims.
Relatedly, the Court also found that the applicants had no effective domestic remedies to challenge either of the two violations, in violation of Article 13 of the Convention, as they were not informed of either the imposed restrictions or the relevant court proceedings and decisions made in any appropriate way.
Lastly, the Court unanimously established that the restrictions were imposed on the applicants for ulterior purposes, in violation of Article 18 of the Convention, with the aim ‘to punish the applicants for their activities in the area of human rights and to prevent them from continuing those activities’. Underlining that both the right to protection of property and the right to freedom of movement are qualified rights, subject to restrictions permitted under the Convention, the Court for the first time applied Article 18 of the Convention in conjunction with the two respective rights, expanding its application in its case law.
Commentary on the importance and the impact of the Court’s judgment
For the purposes of this blogpost, the commentary focuses on the significance of the application of Article 18 in this case and its expanded application to other qualified rights. It also discusses litigators’ tactics to systematically use Articles 18 and 46 of the Convention to address the repression of human rights defenders and the Court’s response, with regard to human rights lawyers in particular.
Expansion of Article 18 application
The Court’s rapidly growing novel utilisation of Article 18 to expose the states’ bad faith behaviour against human rights defenders and other critics has been extensively discussed in various commentaries (see here and here). This post focuses on the expansion of the application of Article 18 to the Convention’s qualified rights and its significance to the human rights community’s efforts to confront the Azerbaijani Government’s systemic crackdown and expose its ulterior purposes.
In the contexts of these cases, compared to the rare findings of Article 18 violations in the early 2000s, in the period from 2014 to 2021, the Court demonstrated a new willingness to apply Article 18 to expose the ‘bad faith’ actions of the states. It has found violations of Article 18 in 11 judgments concerning 18 individuals against Azerbaijan alone, starting with cases concerning arrest and detention (Article 5) and later expanding the application to other qualified rights, as discussed below.
To date, the Court has found a violation of Article 18 of the Convention in 23 judgments concerning 29 individuals in respect to Azerbaijan, Georgia, Moldova, Turkey, Russia, Ukraine and most recently Bulgaria. The first judgment establishing an Article 18 violation was made as early as 2004 against Russia, in relation to arrest and detention of Mr Gusinskiy, a majority shareholder of a private Russian media holding company. Between 2004-2013, Article 18 continued to be a rarely applied and little understood provision. The Court, applying a very strict burden of proof threshold for Article 18 violations, only found such violations in three cases against Ukraine and Moldova during this period, limited to arrest and pre-trial detention of political opposition members, primarily (Article 5). In the next decade, however, since 2014 to date, as the number of applications by litigators invoking Article 18 has drastically grown, the Court has shown a greater willingness to engage with Article 18 and applied it to political prosecutions of groups other than political opposition. The 2014 massive civil society crackdown in Azerbaijan and the 2016 coup d’etat attempt in Turkey, both resulting in arrests of numerous human rights defenders, lawyers, journalists and members of the political opposition, among others, led to an influx of Article 18 applications brought by human rights groups. In its series of cases relating to persecution of Azerbaijani human rights defenders, EHRAC and its Azerbaijani partner lawyers have consistently argued that the various restrictions imposed on human rights defenders by the authorities, including their arrest and detention and disbarment of lawyers, among others, were not only unlawful but primarily served ulterior purposes, in violation of Article 18 of the Convention (taken together with other Convention rights).
This expansion of Article 18 case law to other qualified rights by the Court in Azerbaijani cases is primarily in response to the Government’s extensive repressive policy to paralyze its critics and the litigators’ strategy to address it in a comprehensive and consistent manner. Many of the applicants were arrested, detained, some were denied adequate medical treatment, subjected to beatings in custody, insults and threats in detention, bank accounts were frozen, offices searched and materials and equipment confiscated, travel bans imposed, some were subjected to tax inspections, lawyers had their licences suspended and were disbarred. This indicates a systemic targeted plan to silence everyone speaking out against its policies or defending those who do so or suffer from the authorities’ unlawful actions. EHRAC and its partner lawyers, who represented a significant number of the persecuted members of the Azerbaijani civil society, have consistently argued that the authorities’ actions were in violation of the State’s obligation to act in good faith, with the intention of unraveling the authorities’ systemic intentional ulterior practices against the country’s civil society. Although the Government has consistently denied this before the Court, it was the combination of both the facts of the individual cases (such as public statements by state officials calling applicants traitors and enemies) and the wider contextual circumstances (e.g. the allegedly unlawful actions of NGOs were not criminalised in Azerbaijan), comprehensively presented to the Court by the applicants in each case, that led the Court to conclude that the State had acted with ulterior purposes.
This judgment is the Court’s latest response to the victims’ attempts to confront the Azerbaijani Government’s bad faith behaviour, expanding the application of Article 18 to two more qualified rights: the rights to protection of property and to freedom of movement (and has already done so with regard to rights under Articles 8 and 10 of the Convention in the cases of human rights lawyers Intigam Aliyev and Khalid Bagirov relating to the confiscation of case files and search of offices, and disbarment respectively). In establishing the Government’s ulterior purposes in this case, the Court took into account the applicants’ status as a human rights lawyer and a human rights NGO, attaching particular importance to the special role that they play in promoting and defending human rights. It made particular reference to the fact that the transfer of money to Mr Mustafayev for legal aid from the Council of Europe was considered ‘as an instrument’ in the criminal investigation against him, suggesting that this pointed to the possibility that the freezing of the bank accounts was used as a measure ‘preventing him from exercising his professional legal activity’.
The Court attached importance to the extent that the imposed restrictions negatively impacted the applicants’ ability to continue their human rights work, effectively ‘paralyzing their work’. It also drew attention to the Government’s failure to explain why such restrictions were necessary and what the legitimate reasons were, pointing to the Government’s inability, and/or unwillingness, to engage with the Court’s process to explain its actions.
Finally, the Court attributed particular importance to the specific context of the applicants’ case, in which many other human rights defenders, activists and Government critics face similar and other restrictions – which it has already addressed in several other cases relating to ‘a pattern of (…) retaliatory prosecutions and misuse of the criminal law in breach of Article 18’, and cross-referred to in this case. The Court’s reliance on its earlier findings under Article 18 in similar cases against Azerbaijan and contextual factors to substantiate its findings in this case indicates the Court’s softening approach to the burden of proof threshold in Article 18 cases. It speaks to the significance of the accumulative impact of consistent litigation of ‘bad faith’ cases by human rights groups, such as EHRAC and its partner lawyers have done in the case of Azerbaijani human rights defenders, allowing the Court to establish the state’s ulterior purposes as a systemic problem and refute the Government’s allegations of there being merely isolated instances.
Protection of human rights lawyers
The legal profession and lawyers who take on civil rights cases have been among the most recent targeted groups in Azerbaijan. The repercussions have developed from criminal convictions and imprisonment to confiscation of case materials and equipment, suspension and disbarment to travel bans and freezing of bank accounts, among others. Since the domestic judicial system does not offer any effective oversight and protection and upholds the bad faith actions of the executive, the Court has become the only judicial institution to seek recognition of violations and exposure of such targeted persecution – to which the Court has responded by utilising Article 18.
At the time of the writing of this post, the Court has established in three cases that the Azerbaijani authorities have acted with ulterior purpose against human rights defenders, all of whom, albeit targeted in different forms, have been effectively unable to continue their work as a result. Prominent human right lawyer Intigam Aliyev, the Chairman of Legal Education Society, was convicted and imprisoned during the crackdown in 2014, and therefore physically prevented from his work, and hundreds of his case files, including those pending before the Court, were confiscated and his office sealed by the prosecution. Lawyer Khalid Bagirov, who took on many ‘crackdown’ cases, was suspended and later disbarred for speaking out and criticising the ineffectiveness of the judiciary in the politically motivated case against his client Ilgar Mammadov (in whose case the Court found a violation of Article 18 against Azerbaijan for the first time and in respect of whose case the first ever infringement proceedings were initiated by the Committee of Ministers of the Council of Europe). The loss of licence for Mr Bagirov meant he was no longer able to act for all his clients as the domestic law was soon amended to prohibit non-licenced lawyers from acting in domestic courts. Lawyer Asabali Mustafayev, the applicant in the discussed case, had his bank accounts frozen, which effectively meant he was no longer to receive any funding for his human rights work and was further intimidated by the ongoing criminal investigation and the travel bans. None of them have been able to restore their legal work to date – but the Court has taken a significant step aiming to offer the applicants, and the Government, an opportunity for remedies, by ordering the same individual measures to be taken by the Government under Article 46 of the Convention in all three cases. The Court indicated the following:
‘…the adoption of measures aimed, among others, at eliminating any impediment to the exercise of their activities. Those measures should be feasible, timely, adequate and sufficient to ensure the maximum possible reparation for the violations found by the Court, and they should put the applicants, as far as possible, in the position in which they had been before…’
Although used in very rare instances, under Article 46 the Court may indicate the type of measure to be taken in order ‘to put an end to a violation’ it has found, ‘with a view to helping the respondent State to fulfil its obligations under Article 46’. The Court has said that it may either be specific or propose various options and leave the choice of measure to the discretion of the respondent state, and in certain cases, ‘the nature of the violation found may be such as to leave no real choice as to the measures required to remedy it’ and the Court may decide to indicate only one such measure.
In the three discussed cases, the Court was specific enough to order the Government to return the applicants to the position in which they had been before the violations, but left it to the domestic authorities’ discretion to decide how to implement this. The necessary individual measures, however, are clear, all directly stemming from the restrictions imposed by the authorities: Mr Aliyev should be able to restore his NGO activities as a part of which he worked as a human rights lawyer, have his conviction quashed and other imposed restrictions lifted, Mr Bagirov should be reinstated to the Azerbaijani Bar Association, and Mr Mustafayev should have unrestricted access to his bank accounts to be able to fund his legal work and that of his NGO. While establishing that the Azerbaijani authorities have acted with ulterior purpose in all these cases, in the absence of any legal basis for such restrictions whatsoever, the Court nonetheless chose to leave it to these same authorities to ‘negotiate’ the type of remedies before the Committee of Ministers, a political body of the Council of Europe. Furthermore, while recognising ‘a pattern of (…) retaliatory prosecutions and misuse of the criminal law’ against human rights defenders and other critics, the Court has failed to take an opportunity to indicate a general measure that is fundamental to the effective implementation of the respective individual measures – the creation of an enabling civil society environment, both through adequate legislation and its implementation, without which none of the applicants in any of the Article 18 cases against Azerbaijan will be able to continue their work. It is questionable what dialogue is possible on such cases with the very same authorities that orchestrated such restrictions for their own political ulterior purposes. At least the applicants and human rights groups advocating for improving human rights and civil society situation in Azerbaijan now have a new opportunity to engage on these matters through the Committee of Ministers, in the absence of any space for advocacy domestically, which will certainly be a long road.
A short conclusion
The importance of the Court’s findings under Article 18 of the Convention in this case, and in other related 18 cases, is undoubtedly significant. In the Azerbaijani human rights defenders’ cases, including in the case of Mr Mustafayev, it was the Court’s establishment of a violation of Article 18 that unravelled the authorities’ ulterior purposes behind the civil society crackdown, in an authoritative judicial form, and cracked the saga of the alleged ‘double standards’, which the Government of Azerbaijan has claimed, dismissing any Council of Europe or other international advocacy work as politically biased. The judgments not only exposed the highly repressive and extensive abusive practices, but also provided the applicants with a rare opportunity to seek legal remedies through the domestic courts. Even in such an extremely repressive environment as that of Azerbaijan, some progress seems to be possible, as the cases of a human rights defender Rasul Jafarov and opposition politician Ilgar Mammadov have shown – both have had their convictions quashed. These cases also speak to the importance of the consistent, repeated efforts of applicants and litigators to make Article 18 complaints before the Court and of the Court’s concomitant response to address the deepening authoritarian policies with the tools, which the Convention was designed to provide.