CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 20 septembre 2018

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AZERBAIJAN   (Applications nos. 68762/14 and 71200/14)                 JUDGMENT   This version was rectified on 9 October 2018 under Rule 81 of the Rules of Court.   STRASBOURG   20 September 2018     FINAL   04/02/2019   This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision.   In the case of Aliyev v. Azerbaijan, The European Court of Human Rights (Fifth Section), sitting as a Chamber composed of:   Angelika Nußberger, President,   Erik Møse,   Yonko Grozev,   Síofra O’Leary,   Mārtiņš Mits,   Lәtif Hüseynov,   Lado Chanturia, judges, and Milan Blaško, Deputy Section Registrar, Having deliberated in private on 10 July 2018, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.     The case originated in two applications (nos.   68762/14 and 71200/14) against the Republic of Azerbaijan lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by an Azerbaijani national, Mr Intigam Kamil oglu Aliyev ( İntigam Kamil oğlu Əliyev – “the applicant”), on 16 October 2014 and 6 November 2014 respectively. 2.     The applicant was represented by Ms R. Remezaite and Mr   J.   Javadov, lawyers practising, respectively, in London and Baku, and, starting from 30 August 2015, also by Mr Grégory Thuan dit Dieudonné, a lawyer practising in Strasbourg. [1] The Azerbaijani Government (“the Government”) were represented by their Agent, Mr Ç. Asgarov. 3.     The applicant complained, in particular, that his conditions of detention had amounted to inhuman and degrading treatment, that he had not received adequate medical assistance while in detention, that his arrest and pre-trial detention had not been justified and had been carried out in bad faith, that interferences with his rights to respect for his private life, home and correspondence and to freedom of assembly had not been justified, and that his rights had been restricted for purposes other than those prescribed in the Convention. 4.     On 19 November 2014 the complaints under Articles 5 §§ 1, 3, 4 and Articles 8, 11 and 18 in application no. 68762/14 were communicated to the Government and the remainder of that application was declared inadmissible pursuant to Rule 54 § 3 of the Rules of Court. On 2 February 2015 application no. 71200/14 was also communicated to the Government. THE FACTS I.     THE CIRCUMSTANCES OF THE CASE 5.     The applicant was born in 1962 and at the time of the events lived in Saray, Absheron region. 6.     The facts of the case are similar to the application Rasul Jafarov v.   Azerbaijan (no. 69981/14, 17 March 2016) in that the applicant in the present case was arrested in the context of the same events and on the basis of similar charges. A.     The applicant’s background 7.     The applicant is a well-known human-rights lawyer and civil-society activist. He represents applicants before the Court in a large number of pending cases. 8.     He is also the chairman of the Legal Education Society (“the   Association”), a non-governmental organisation specialising in legal education. The Association was registered by the Ministry of Justice on 2   June 1999 and acquired the status of a legal entity. Its main functions consisted of raising legal awareness, organisation of training programmes for lawyers, human-rights defenders and journalists and preparation of reports relating to various human-rights issues in Azerbaijan. The Association was also involved in the preparation of applications to the Court and the submission of communications to the Committee of Ministers in the context of the execution of the Court’s judgments. 9.     The applicant has collaborated with various international organisations on human-rights-related projects, including the   European Programme for Human Rights Education for Legal Professionals (HELP) of the Council of Europe. 10.     The applicant was involved, together with other human-rights defenders, in the preparation of a consolidated list of political prisoners in Azerbaijan. B.     Circumstances preceding and surrounding the applicant’s arrest 11.     On 24 June 2014, during the June session of the Parliamentary Assembly of Council of Europe (PACE), the applicant, along with other local human-rights defenders, including Mr Rasul Jafarov, participated as one of the speakers at a side event organised in the Council of Europe. During this meeting the applicant delivered a report on human-rights abuses in Azerbaijan. 12.     According to the applicant, following his participation at the above event, a smear campaign was launched against him and other human-rights defenders by the pro-government media. For instance, on 4 July 2014 an online news portal affiliated with the authorities described the applicant, together with other human-rights defenders, as “American agents who receive millions of dollars in grants for painting an anti-Azerbaijani picture”. 13.     On 14 August 2014, following the applicant’s arrest on 8 August 2014 (see paragraphs 22-24 below), A.H., the Chairman of the Legal Policy and State Building Committee of the National Assembly, gave an interview to APA, a news agency, where he commented on the reactions to the arrests of the applicant and other human-rights defenders and stated: “... it is those [international organisations] which made them ‘well-known’. The[se] organisations have had grants allocated to them in non-transparent ways, directing them into various activities, including those against Azerbaijan. These people, some of whom are traitors and some weak-minded, will at last answer before the law.” 14.     On 15 August 2014 A.H., the head of the Department of Social and Political Issues of the Presidential Administration, stated the following in an interview with Trend news agency: “The most deplorable thing is that such NGOs and individuals and some journalists, relying on foreign circles funding them, placed themselves above national law, evaded registration of their grant projects, filing financial statements, taxes and other legal requirements.” 15.     In an interview published on 2 September 2014 Y.M., a member of parliament from the ruling party, who was also the director of the Institute of History at the Academy of Sciences, stated the following in respect of the recently arrested NGO activists and human-rights defenders: “People who betray their motherland cannot be forgiven. ... The death penalty should be imposed on such people. Capital punishment must be the gravest punishment for them. Why should traitors be forgiven? ... Therefore, the activities of a number of non-governmental organisations must be investigated very seriously, and if any illegality is discovered, such organisations must be immediately banned and their leaders punished.” 16.     On 3 September 2014 an online news portal Vestnik Kavkaza published an interview with R.M., the head of the Presidential Administration who stated, inter alia , the following: “Such NGOs as the Institute for Peace and Democracy, Institute for Reporters’ Freedom and Safety, Legal Education Society, Monitoring and Teaching Democracy Center and others use big grants from foreign organisations under the guise of human ‑ rights protection to send reports to different quarters and organise anti ‑ Azerbaijani campaigns in international structures where Azerbaijan is represented.” 17.     On 3 December 2014 State-owned news agencies published a sixty ‑ page manifesto written by R.M., the head of the Presidential Administration, entitled “The World Order of Double Standards and Modern Azerbaijan”. The article accused human-rights NGOs operating in the country of being the “fifth column of imperialism”. It postulated that various, mostly US-sponsored, donor organisations such as the United States of America’s National Endowment for Democracy (NED), as well as other foreign organisations, supported political opposition movements in various countries against national governments. For local human-rights NGOs, the purpose of such funding schemes was the formation of a “fifth   column” inside a country. US taxpayers’ money was being spent on pushing for regime change or forcing existing governments to comply with US political demands. C.     Criminal proceedings against the applicant and his remand in custody 18.     On 13 May 2014 the Prosecutor General’s Office instituted criminal proceedings under Articles 308.1 (abuse of power) and 313 (forgery by an official) of the Criminal Code in connection with alleged irregularities in the financial activities of a number of non-governmental organisations, including the Association. 19.     On 7 July 2014 the Sabail District Court ordered freezing of the applicant’s and the Association’s bank accounts. 20.     On 8 August 2014 the applicant was invited to the Prosecutor General’s Office for questioning as a witness in connection with the above ‑ mentioned criminal proceedings. The interview lasted about thirty minutes during which the applicant was questioned about his background, his family and activities of the Association. 21.     Following the interview, the investigator issued a decision charging the applicant under Articles 192.2.2 (illegal entrepreneurship), 213.1 (large ‑ scale tax evasion) and 308.2 (aggravated abuse of power) of the Criminal Code. The description of charges consisted of a single sentence which was one page long and was similar to that used in the case of Rasul Jafarov (cited above, §   16). The acts with which the applicant was charged appear as follows: – the applicant, acting in his capacity as chairman of the Association, had failed to inform the relevant executive authority of his appointment as head and representative of a legal entity in accordance with Article 9.3 of the Law on State Registration of Legal Entities and the State Register; – he had failed to register with the relevant executive authority various grant agreements which had been concluded since August 2012 with NED, Norway’s Human Rights House Foundation and other donor organisations and which had allocated to the Association for various projects certain sums in the total amount of 74,911.29 new Azerbaijani manats (AZN – approximately 71,343 euros (EUR) at the material time); – he had signed the said agreements on behalf of the Association without having legal authority to do so and had placed the above allocated sums in the bank accounts of the Association and then, by withdrawing cash, had made payments to himself and other people involved in the projects in the guise of salaries and service fees; – by failing to register the above grant agreements with the relevant executive authority, the applicant had been conducting illegal entrepreneurial activity and had thus profited in the amount of AZN   66,204.58 (approximately EUR 63,051 at the material time) and had avoided in this context payment of taxes in the amount of AZN 8,706.71 (approximately EUR 8,291 at the material time) which were due in accordance with Articles 124, 150.1.6, 218, 219 and 220 of the Tax Code. 22.     On the same day the Nasimi District Court, relying on the official charges brought against the applicant and the prosecutor’s request for the application of the preventive measure of remand in custody, ordered the applicant’s detention for a period of three months. The court justified the application of remand in custody by the seriousness of the charges and the likelihood that if released he might abscond and influence other participants in the criminal proceedings. 23.     On 11 August 2014 the applicant appealed against this decision, claiming that his detention was unlawful. He stated, in particular, that there was no reasonable suspicion that he had committed a criminal offence and that there was no justification for the application of the preventive measure of remand in custody. He pointed out in this connection that the court had failed to justify his detention on remand and to take into account his personal circumstances, such as his social and family status, his state of health and his age, when it ordered his remand in custody. The applicant further complained, relying on Article 18 of the Convention, that the charges brought against him were politically motivated and that he had been deprived of his liberty because of his work as a human-rights activist. He submitted in this connection that the actual reason for his arrest had been the fact that he had represented numerous applicants before the Strasbourg Court in cases relating to election irregularities and that he had publicly accused the Government of human-rights abuses at a PACE event in June 2014. He argued that his arrest had been part of a general policy aimed at silencing and shutting down independent NGOs and human-rights defenders in the country. 24.     On 13 August 2014 the Baku Court of Appeal dismissed the applicant’s appeal and found the first-instance court’s decision lawful. It referred to the seriousness of the charges and the likelihood that if released the applicant might abscond from the investigation, obstruct the proceedings and interfere with the course of justice. As regards the applicant’s complaints that the charges were politically motivated owing to his human ‑ rights activity, the court held that these allegations were unfounded as the applicant had been accused of committing financial crimes which could not be associated with any political motives. 25.     On 3 September 2014 the applicant applied to the Nasimi District Court, requesting the substitution of remand with either house arrest or release on bail. In his application the applicant, among other things, reiterated his complaints to the effect that the acts attributed to him did not constitute a criminal offence and there was accordingly no reasonable suspicion of his having committed such an offence. 26.     On 12 September 2014 the Nasimi District Court dismissed the application, finding that the risks that the applicant might abscond or otherwise upset the course of the proceedings or reoffend continued to pertain. 27.     On 15 September 2014 the applicant appealed, reiterating his arguments. 28.     On 22 September 2014 the Baku Court of Appeal upheld the Nasimi District Court’s decision of 12 September 2014. 29.     On 23 October 2014 the applicant applied again to the Nasimi District Court, requesting the substitution of remand with either house arrest or release on bail. 30.     On 24 October 2014 the Nasimi District Court dismissed his application based on similar findings. 31.     On the same date the Nasimi District Court extended the applicant’s pre-trial detention by three months, finding that the grounds justifying his continued detention “had not ceased to pertain”. 32.     On 27 October 2014 the applicant appealed against both decisions concerning his application for the substitution of remand with other alternative measures and the extension of his pre-trial detention. 33.     On 29 October 2014 the Baku Court of Appeal dismissed both appeals and upheld the first-instance court’s above decisions. 34.     On 12 December 2014 the Prosecutor General’s Office charged the applicant de novo . In addition to the original charges, the applicant was further charged under Articles 179.3.2 (high-level embezzlement) and 313 (forgery by an official) of the Criminal Code. The acts imputed to the applicant under Article 213.1 (large-scale tax evasion) of the Criminal Code were re-qualified under Article 213.2.2 (tax evasion on a very large scale) of the Criminal Code. In particular, the period of time during which the applicant allegedly committed crimes was expanded from 2012 back to 2009 onwards. As regards the charges of embezzlement, the applicant was accused of transferring various amounts from the bank accounts of the Association to the bank account of one of the Association’s employees with a view to their subsequent withdrawing the cash. With respect to the charges concerning forgery, the applicant was accused of inserting false information into the cashbook concerning payments to various employees of the Association in the guise of salaries and services fees. As regards the re ‑ qualification of the crime of tax evasion, the total amount of alleged illegal profit obtained by the applicant was raised to AZN 496,729.25 (approximately EUR 473,075 at the material time) and the amount of alleged unpaid taxes to AZN 65,636.85 (approximately EUR 62,510 at the material time). 35.     On 29 December 2014 the Prosecutor General’s Office drew up a bill of indictment and the case went to trial. D.     Search and seizure in the applicant’s home and in the Association’s office 36.     On 7 August 2014 the prosecutor in charge applied to the Nasimi District Court to have a search of the office of the Association (see paragraph 8 above) and “other places of storage” authorised. The prosecutor justified the search by referring to the criminal investigation under Articles 308.1 (abuse of power) and 313 (forgery by an official) of the Criminal Code “into breaches of legislation discovered in the activities of a number of non-governmental organisations and branches and representatives offices of foreign non-governmental organisations in Azerbaijan”. 37.     On the same day the Nasimi District Court authorised a search of the Association’s office and “other places of storage”. The relevant parts of the decision read as follows: “[The prosecutor in charge of the case] applied to the court with a request to conduct a search and seizure in the framework of the criminal case no. 142006023. [The prosecutor in charge] justified his request by [the following:] ... this criminal case concerns an investigation under Articles 308.1 [abuse of power] and 313 [forgery by an official] of the Criminal Code into breaches of legislation discovered in the activities of a number of non-governmental organisations and branches and representatives offices of foreign non-governmental organisations in Azerbaijan. Given that the evidence gathered gives grounds [to conduct a search], it is necessary for the purpose of carrying out a comprehensive, thorough and objective investigation to conduct a search [of the Association’s] office located at [office address] ... and other places of storage ... Having regard to the above, for the purpose of conducting a comprehensive, thorough and objective investigation, a search and seizure is requested of [the Association’s] office located at [office address] ... and other places of storage. The court considers that for the purpose of conducting a comprehensive, thorough and objective investigation it is necessary to conduct a search and seizure [of the Association’s] office located at [office address] ... and other places of storage.” 38.     On 8 August 2014 the investigator carried out a search of the applicant’s home on the basis of the Nasimi District Court’s decision of 7   August 2014. According to the search record of 8 August 2014, the search was carried out in the presence of the applicant’s lawyer, members of his family and two attesting witnesses ( hal şahidləri ). The investigator seized all the documents, computers, USB flash drives and other electronic data storage devices. On the same day the investigator also carried out a search of the home of the applicant’s brother where the applicant was officially registered as a resident. 39.     On 9 August 2014 the investigator carried out a search of the Association’s office. It appears from the search record of 9 August 2014 that the investigator seized all the documents found in the office, including documents related to the Association’s activities and case files concerning over a hundred applications pending before the Court and documents related to the proceedings before the domestic courts. 40.     On an unspecified date the applicant lodged a complaint with the Nasimi District Court, claiming that the searches had been unlawful. Relying on Article 8 of the Convention, he complained that there had been no legal basis for carrying out the searches. He also complained that the investigator had failed to record each seized document as required by the relevant law and had taken the documents without making an inventory. He further complained of the seizure of numerous documents and files relating to the ongoing court proceedings before the Court and the domestic courts. 41.     On 12 September 2014 the Nasimi District Court dismissed the applicant’s claim. The first-instance court held that the searches had been conducted in accordance with the relevant law. As to the seizure of the documents relating to the cases pending before the Court and the domestic court, it found that they could not be returned to the applicant at this stage of the proceedings. 42.     On 15 September 2014 the applicant appealed against this decision, reiterating his previous complaints. He asked, in particular, the appellate court to declare the searches unlawful, to order the return of the documents relating to the cases pending before the Court and the domestic courts, and to provide him with a copy of all the seized documents in order to prepare his defence. 43.     On 23 September 2014 the Baku Court of Appeal dismissed the applicant’s appeal and upheld the first-instance court’s decision of 12   September 2014. E.     The applicant’s conditions of detention and his medical treatment in detention 1.     The applicant’s conditions of detention in the detention facility (a)     The applicant’s account 44.     Following his arrest, the applicant was placed in the Baku pre-trial detention facility in Kurdakhani. 45.     From 9 to 12 August 2014 the applicant was held in a so-called “quarantine” cell designed for the admission of newcomers. He was detained in this cell, which according to him measured approximately 10 sq. m, together with eight other detainees. The applicant did not have his own bed and had to share beds with others. The cell was not adequately ventilated and, although all the detainees were smokers except the applicant, there was no special place for smoking. The temperature inside the cell was very high. The applicant had no access to outdoor exercise and was confined to his cell for the whole day. There was no bathroom and the sanitary conditions were very bad. Water supply was available only two hours per day. The light was always on. 46.     As from 12 August 2014, following a visit of a delegation from the International Committee of the Red Cross, the applicant was transferred to another cell. He was then detained in a cell measuring 12-14 sq. m together with three other detainees. The applicant had his own bed and bedding. There was a small window in the cell. However, the cell was not adequately ventilated and the temperature inside the cell was very high in August and September and very low in winter because the central-heating system was turned on only after 15 November. There was no fresh air in the cell and while there was a yard of 10 sq. m adjacent to the cell, it was closed after 4   p.m. every day. The light in the cell was never switched off, contributing further to the lack of sleep. Cold water was provided every few hours, but hot water was available only twice per week. 47.     The food served in the detention facility was meagre and of poor quality and had to be supplemented with food sent by the applicant’s family. However, the applicant was entitled to receive only one parcel of food per week and there was no possibility to keep food fresh because of the absence of a refrigerator. 48.     The applicant was confined to his cell for most of the day. There was an exercise room in the detention facility, but detainees were not allowed to use it. (b)     The Government’s account 49.     Without specifying the relevant periods of the applicant’s detention, the Government submitted that the applicant had been detained with three other detainees in the cell measuring 17.82 sq. m., which was designed to accommodate four persons. The cell had been adequately lit and ventilated. There had been one window in the cell measuring 120 by 140 cm. Sanitary facilities had been separated by a plastic door and consisted of a toilet, a sink and a shower. The applicant had been provided with a separate bed and bedding, water, food and other necessities. In support of their account the Government submitted a copy of a certificate issued by the Prison Service which provided a general overview of the Baku pre-trial detention facility. 2.     The applicant’s state of health and medical treatment in detention 50.     The applicant suffered from a number of conditions before his arrest. In particular, he suffered from osteochondrosis of the vertebral column, abnormal blood pressure, thrombophlebitis, prostatic hyperplasia, insomnia and headaches and had neurological and urological problems. 51.     According to the applicant, his state of health significantly deteriorated following his arrest because of the interruption and postponement of medical treatment that he had been undergoing before his arrest. 52.     On 24 October 2014 during a hearing at the Nasimi District Court the applicant felt unwell and fainted in the courtroom. The applicant’s lawyer immediately lodged an application with the judge, asking for the applicant’s examination by a medical expert in order to establish whether his state of health was compatible with his detention. The judge decided to forward the request to the Serious Crimes Department of the Prosecutor General’s Office, without taking further action. 53.     On 24 October 2014 the applicant’s lawyer also lodged an application with the head of the detention facility, asking for the applicant to receive adequate medical treatment. 54.     On 25 and 27 October 2014 the applicant underwent medical examinations, including a MRI scan of his brain and vertebral column in the National Oncology Centre in Baku. According to the results of the scan, there was no pathology in the brain or the vertebral column. The results of the scan revealed the presence of osteochondrosis of the vertebral column, a hernia in the vertebral column and disc protrusions in the following areas of the vertebral column: C 4-5, C   5-6, C 6-7, L 2-3, L 4-5. The doctors, however, concluded that none of these hernias or disc protrusions required surgery or inpatient treatment and prescribed outpatient treatment. The ultrasound examination of the abdominal zones showed enhanced parenchymal echogenicity of the left kidney, and some hydronephrosis and some kidney stones in the renal collecting system. Small masses were detected in the prostate. In order to determine whether there was pathological process in the prostate, the applicant was subjected to a specific prostate blood test, PSA (Prostate-Specific Antigen), and the result of the test was satisfactory. 55.     On 28 October 2014 the applicant asked the head of the detention facility to inform him of the results of the medical examinations. 56.     On 31 October 2014 the applicant was officially informed of the results of the medical examinations. However, according to the applicant, he was not provided with copies of these results. 57.     On 11 November 2014 the applicant’s lawyer asked the head of the detention facility to provide him with copies of the results of the applicant’s medical examinations. It is not clear from the case-file whether the applicant was provided with those documents. 58.     By a decision of 14 November 2014, the investigator in charge of the case dismissed a request by the applicant for examination by a forensic expert, finding that the applicant had undergone the relevant medical examinations and there was no need for his examination by a forensic expert. 59.     On 20 November 2014 the applicant lodged a request with the prosecution authorities and the administration of the detention facility, asking them to allow his medical examination by two independent doctors, I.H. and A.G. 60.     By a decision of 28 November 2014, the investigator in charge of the case dismissed the applicant’s request, finding that he had failed to substantiate his request. 61.     By a letter of 2 December 2014, the medical department of the Ministry of Justice informed the applicant that he had undergone the relevant medical examinations and a conservative treatment had been prescribed for him. 62.     In December 2014 the applicant was examined by the neurologist, who prescribed anti-anxiety drugs. The applicant was also seen by an ophthalmologist and a psychiatrist, and underwent an ultrasound examination. 63.     On 26 December 2014 the applicant stopped taking the anti-anxiety drugs prescribed. According to the applicant, he decided not to take the drugs owing to the serious side effects, such as appearance of suicidal behaviour. 64.     According to the Government, on 19 February 2015 the applicant was examined in the Neurosurgery Hospital by the country’s leading doctors. The laboratory and ultrasound examination did not reveal any cancer-related anomalies. 3.     The applicant’s conditions of transport to and the conditions of detention in the court-house 65.     According to the applicant, he was transported several times to and from the Baku pre ‑ trial detention facility. The distance between the detention facility and the court-house was about 15-20 km. 66.     The applicant and other detainees were transported in special vans and the journey usually lasted about one hour. According to the applicant, the vehicles were in poor condition and there was no appropriate place to sit or stand inside. Allegedly, no ventilation or air conditioning was available. 67.     On 24 October 2014 the applicant was transported to the Nasimi District Court together with nine other detainees, in a van allegedly designed for eight people. 68.     He was detained in a room situated in the basement of the court-house. According to the applicant, the room was not ventilated and did not allow access to daylight. There was only one little window which had metal bars and was not open. The room was small and measured 4-5 sq. m. The applicant shared this room with four detainees all day waiting for his hearing. He was allegedly not provided with food and water. 4.     The applicant’s attempts to obtain redress for the alleged lack of medical treatment and poor conditions of detention 69.     On 28 January 2015 the applicant lodged under the Code of Criminal Procedure a complaint with the Sabunchu District Court against the Baku pre-trial detention facility, complaining about his conditions of detention and of the lack of adequate medical treatment. 70.     On 8 February 2015 the court left the applicant’s complaint without examination for lack of jurisdiction as the investigation had been already completed and his criminal case had gone to trial. 71.     On 25 February 2015 the Baku Court of Appeal upheld the above decision. F.     The applicant’s criminal conviction and subsequent release from detention 72.     On 22 April 2015 the Baku Assize Court convicted the applicant as charged under Articles 179.3.2, 192.2.2, 213.2.2, 308.2 and 313 of the Criminal Code (see paragraphs 21 and 34 above) and sentenced him to seven and a half years’ imprisonment. 73.     On 21 July 2015 the Baku Court of Appeal upheld the applicant’s conviction and sentence. 74.     On 24 February 2016 the Supreme Court upheld the Baku Court of Appeal’s judgment of 21 July 2015. 75.     On an unspecified date   the Prosecutor General lodged an application for supervisory review with the Plenum of the Supreme Court on the ground of the severity of the sentence imposed on the applicant. 76.     On 28 March 2016 the Plenum of the Supreme Court granted the application and reduced the applicant’s sentence to five years’ imprisonment suspended on probation. The applicant was released from detention. 77.     The applicant’s criminal trial is the subject of a separate application which is pending before the Court (application no. 51324/16). II.     RELEVANT DOMESTIC LAW AND PRACTICE AND INTERNATIONAL REPORTS 78.     For a summary of the relevant domestic law, including most of the relevant provisions of the Criminal Code, and practice and for international reports see Yunusova and Yunusov v. Azerbaijan (no.   59620/14, §§ 92-103, 2 June 2016) and Rasul Jafarov (cited above §§   50 ‑ 84). Furthermore, according to Article 213.2.2 of the Criminal Code, as in force at the material time, an offence of tax evasion on a very large scale (defined as an amount above AZN 100,000 but not exceeding AZN 500,000) was punishable by imprisonment for a period between three to seven years, with or without deprivation of the right to hold a certain position or to engage in a certain activity for a period of up to three years. 79.     The relevant parts of the Concluding observations on the fourth periodic report of Azerbaijan (CCPR/C/AZE/4) adopted by the UN Human Rights Committee on 16 November 2016, read as follows: “Freedom of expression 36.     The Committee remains concerned about extensive restrictions on freedom of expression in practice, including: (a)     Consistent reports of intimidation and harassment, including arbitrary arrest and detention, ill-treatment and conviction of human rights defenders, youth activists, political opponents, independent journalists and bloggers on allegedly politically motivated trumped-up administrative or criminal charges of hooliganism, drug possession, economic crimes, tax evasion, abuse of office, incitement to violence or hatred etc.; ... 37.     The State party should take all measures necessary to guarantee the full enjoyment of freedom of expression by everyone in practice. It should take immediate steps to end any repression against the above-mentioned categories of persons, provide effective protection against persecution or retaliation and ensure that any restrictions on the exercise of their freedom of expression comply with the strict requirements of article 19 (3) of the Covenant. ... ... Freedom of association 40.     The Committee is concerned about restrictive legislation negatively affecting the exercise of freedom of association, including stringent registration requirements for public associations and NGOs, broad grounds for denial of registration and temporary suspension or permanent closure of NGOs, restrictive regulations on grants and donations received by public associations and NGOs, including the ban on foreign funding, and heavy penalties for violations of the relevant legislation. The Committee is further concerned about threats against NGO leaders, the high number of criminal investigations against NGOs, the freezing of their assets and those of their members and the significant number of NGOs that have been closed. ... 41.     The State party should revise relevant laws, regulations and practices with a view to bringing them into full compliance with the provisions of articles 19 and 22 of the Covenant, including by: (a)     Simplifying registration rules and clarifying the broad grounds for denying the registration of and temporarily suspending or permanently closing NGOs; (b)     Ensuring that legal provisions regulating NGO grants allow access to foreign funding and do not put at risk the effective operation of public associations as a result of overly limited or overly regulated fundraising options; (c)     Ending the crackdown on public associations and ensuring that they can operate freely and without fear of retribution for their legitimate activities; ...” 80.     In addition, the United Nations Special Rapporteur on the situation of human rights defenders conducted an official visit to Azerbaijan from 14   to 22 September 2016. In the course of his visit, the Special Rapporteur met high-level representatives of the national authorities and members of civil society, including human-rights defenders in detention. The most relevant parts of the report on this visit (“Report of the Special Rapporteur on the situation of human rights defenders on his mission to Azerbaijan”), which was presented to the Human Rights Council at its thirty-fourth session (27 February-24 March 2017), read as follows: “B.     Situation of human rights defenders 1.     Stigmatization 28.     The situation of civil society in Azerbaijan has seen serious setbacks since 2009, as the rights to freedom of expression, assembly and association have increasingly been curtailed when exercised in opposition to the Government or its policies. Moreover, high-level government officials have used a strident rhetoric to stigmatize human rights defenders and declare them tools of Western influence bound to undermine the State. 29.     In December 2014, the head of the Presidential Administration published an essay, stating that Western-funded NGOs played the role of a “fifth column” in Azerbaijan and made several public statements repeating the accusation. Other key officials made similar statements. Most defenders have been accused of being political opponents, promoting values that run counter to those of their society or culture. They have been denounced as politically or financially motivated actors. During the visit, it became evident that such inflammatory language by senior government officials has had a stigmatizing impact on civil society. 30.     The continued stigmatization of defenders, which exposes them to heightened risks and produces a chilling effect on the public perception of them, remains of concern. Describing reputable organizations as paid political activists serves no legitimate purpose. The Special Rapporteur urges the Government to refrain from stigmatizing human rights defenders and to respect the legitimate role of civil society in the promotion of human rights and the rule of law in Azerbaijan. 31.     The Government is encouraged to support the work of independent civil society organizations, despite disagreements or criticisms, bearing in mind their invaluable role in advancing Azerbaijani society. The Special Rapporteur urges the Government to undertake activities to raise awareness of human rights among the public and foster a spirit of dialogue and cooperation in society. 2.     Criminalization 32.     During the visit, the Special Rapporteur received many reports and testimonies pointing to the intensified crackdown on and criminalization of civil society in Azerbaijan. In that context, the authorities have targeted defenders, journalists, lawyers and grassroots activists through the use of politically motivated criminal prosecutions, arrests, imprisonment and travel bans. They have also used detention to intimidate political and social media activists on what often seem to be spurious misdemeanour charges of resisting police orders or petty hooliganism. 33.     In 2015, the Committee against Torture expressed deep concern that human rights defenders had been arbitrarily deprived of their liberty, subjected to ill ‑ treatment and, in some cases, denied adequate medical treatment in retaliation for their professional activities (see CAT/C/AZE/CO/4, para. 10). At the conclusion of its visit in May 2016, the Working Group on arbitrary detention stated that defenders continued to be detained under criminal or administrative charges as a way to impair the exercise of their basic human rights and fundamental freedoms and to silence them. Those practices constituted an abuse of authority and violated the rule of law that Azerbaijan had agreed to comply with. The Working Group also referred to the large number of cases of detainees who were exposed to violence, torture and ill ‑ treatment. When he visited detained defenders during his visit, the Special Rapporteur could attest to the vulnerability of their physical integrity owing to the continued reports of violence in the context of detention in the country. 34.     The Special Rapporteur, jointly with other mandate holders, has issued a number of public statements, urging the authorities to put an end immediately to all forms of persecution of human rights activists in the country. At the session of the Human Rights Council, held in June 2015, a group of 25 States endorsed an oral statement on the situation of human rights in Azerbaijan, raising concerns about the shrinking space for civil society and the imprisonment of independent voices, in particular defenders, and calling for their immediate and unconditional release. 35.     The punitive approach to criminalize defenders is said to include a number of the following elements: applying politically motivated charges (inciting hatred, mass disorder and treason); resorting to fabricated charges (possession of drugs and weapons, hooliganism and embezzlement); and using special charges (illegal business activity, tax evasion, and abuse of office) to target primarily the heads of prominent NGOs in Azerbaijan and curtail the ability of NGOs to operate. 36.     It is alarming that the maximum term of imprisonment under the code of administrative offences for misdemeanours, with which defenders are often charged (for example, hooliganism, resisting police and traffic violations), has been increased from 15 to 90 days. It is now equal to the minimum term of detention under the criminal code. The Human Rights Committee has held that such severity of punishment may amount to de facto criminal sanction (see CCPR/C/AZE/CO/4, para.   20). Furthermore, in practice, administrative trials that result in such sentences are reportedly perfunctory, with defendants having limited access to independent counsel. Judges tend to decide on periods of detention based almost exclusively on police testimonies. The widespread nature of this type of criminalization could be seen in the documenting of at least 30 cases by civil society, in which the authorities used administrative law offences to jail human rights activists in 2016. 37.     The gravity of the arbitrary detention of defenders in Azerbaijan is illustrated through the continuous efforts by civil society to monitor and document how many political prisoners are in detention at a given time. Various lists of political prisoners are updated regularly to inform the debate about the exact number of political prisoners in the country. In fact, during their visits, both the Special Rapporteur and the Working Group on arbitrary detention received various lists of a large number of defenders, journalists and political and religious leaders who were detained on a broad range of politically motivated charges (drugs- and arms-related offences, hooliganism, resisting police, tax evasion, etc.) during their visits. 38.     In late 2015 and early 2016, the Government conditionally released or pardoned a number of human rights defenders. However, none of those released had their convictions vacated and several still face travel restrictions. The Special Rapporteur shares the view of the Working Group on arbitrary detention that the pardon did not lead to any significant change in the country regarding other persons deprived of their liberty. Furthermore, even as some activists and journalists were released, the authorities regrettably arrested many others on spurious criminal and administrative charges to prevent them from carrying out their legitimate work. 39.     The Special Rapporteur is deeply concerned about the intimidation facing the families and relatives of defenders who carry out their activism from abroad, which in some cases has involved criminal charges being brought against those relatives. The Special Rapporteur calls on the Government to refrain from criminalizing the important work of human rights defenders and immediately review the cases of defenders and their relatives deprived of their liberty, with a view to releasing them unconditionally.” III.     COUNCIL OF EUROPE COMMITTEE OF MINISTERS DOCUMENTS CONCERNING THE EXECUTION OF THE ILGAR MAMMADOV GROUP OF CASES 81.     Supervision of the execution of the Court’s judgments in the cases of Ilgar Mammadov v. Azerbaijan (no. 15172/13, 22 May 2014, final on 13   October 2014) and Rasul Jafarov (cited above, final on 4 July 2016) is done by the Committee of Ministers under enhanced procedure. According to the Committee of Ministers’ decision CM/Del/Dec(2016)1273, adopted during its 1273 DH meeting (December 2016), the Rasul Jafarov case was classified as a clone of the “ Ilgar Mammadov group of cases” in respect of the general measures. 82.     During the first examination of the Ilgar Mammadov case at its 1214th meeting (December 2014), the Committee, in the context of general measures, “conveyed its particular co