CEDH · CASELAW;CLIN;ENG — 20 septembre 2018

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Azerbaijan - 68762/14 and 71200/14 Judgment 20.9.2018 [Section V] Article 18 Restrictions for unauthorised purposes Detention of human rights defender and search of his home and office for the purpose of silencing and punishing him and impeding his work: violation Article 46 Article 46-2 Execution of judgment General measures Respondent State required to eradicate arbitrary arrests, detention and retaliatory prosecution of government critics, civil society activists and human rights defenders Facts – In 2014 the applicant, a prominent human rights lawyer and civil-society activist in Azerbaijan, was arrested and remanded in custody on charges of illegal entrepreneurship, large-scale tax evasion and aggravated abuse of power. His home and the office of the non-governmental organisation he chaired – the Legal Education Society (hereafter “the Association”) – were searched in relation to the charges, his and the Association’s bank accounts were frozen and a large number of documents, computers and electronic data storage devices were seized. In 2015 he was convicted as charged. In 2016 he was released as his sentence was reduced to five years imprisonment suspended on probation. The applicant’s criminal trial is the subject of a separate application which is pending before the Court. Law Article 5 § 1 (c): The applicant had been arrested and detained in the absence of a “reasonable suspicion” of having committed a criminal offence. Conclusion : violation (unanimously). Article 8: The domestic court had authorised the search the day before the applicant had been formally charged, justifying it merely by referring in vague terms to the criminal investigation into “breaches of legislation discovered in the activities of a number of non-governmental organisations” without asserting any specific facts related to the suspected crimes. It therefore appeared that the court had not satisfied itself that there had been a reasonable suspicion of the applicant’s having committed a criminal offence or that the relevant evidence might be found at the premises to be searched. Furthermore, the administrative irregularities that had allegedly been committed by the applicant with respect to receipt and use of the grants by the Association could not have given rise to liability under criminal law. The search and seizure at the applicant’s home and office had therefore not pursued the aim of prevention of a crime or any of the other legitimate aims enumerated in paragraph   2 of Article   8 of the Convention. Conclusion : violation (unanimously). Article 18 in conjunction with Articles   5 and 8: The authorities’ actions had been driven by improper reasons. The actual purpose of the impugned measures had been to silence and to punish the applicant for his activities in the area of human rights as well as to prevent him from continuing those activities. Proof of an ulterior purpose derived from the following case-specific facts: (i)     The applicant, a human rights defender and more specifically a human rights lawyer, was the legal representative before the Court in a large number of cases and had submitted, on behalf of the Association, communications to the Committee of Ministers of the Council of Europe concerning execution of the Court’s judgments. (ii)     The applicant had been charged with serious criminal offences whose core constituent elements could not reasonably be found in the existing facts. (iii)     The applicant’s arrest had been accompanied by stigmatising statements made by public officials against local NGOs and their leaders, including the applicant, who had been labelled as “traitors” and a “fifth column” with the purpose of delegitimising their work. (iv)     The search of the applicant’s home and office had not pursued any of the legitimate aims and had been conducted in an arbitrary manner. Furthermore, the authorities had not only seized documents related to the Association’s activities, but also taken case files covered by lawyer-client confidentiality, including those related to the applications pending before the Court, in disregard of legal professional privilege. (v)     The Court took into account the general context of increasingly harsh and restrictive legislative regulation of NGO activity and funding in the respondent State which in this instance had led to the prosecution of a NGO activist for an alleged failure to comply with legal formalities of an administrative nature while carrying out his work. Although States could have legitimate reasons to monitor financial operations in accordance with international law with a view to preventing money laundering and terrorism financing, the ability of an association to receive and use funding in order to be able to promote and defend its case constituted an integral part of the right to freedom of association. (vi)     The Court also noted the repercussions of the impugned measures on the applicant’s right to freedom of association. As a result of de facto criminalisation of his activities and the measures taken against him in this context, he had been prevented from conducting his NGO activity in any meaningful way. Moreover, those measures had had the chilling effect on the civil society at large, whose members often acted collectively within NGOs and who, for fear of prosecution, might as a result have been discouraged from continuing their work of promoting and defending human rights. (vii)     Several notable human rights activists who had cooperated with international organisations for the protection of human rights, including the Council of Europe, had been similarly arrested and charged with serious criminal offences entailing heavy prison sentences. These facts supported that the measures taken against the applicant had been part of a larger campaign to “crack down on human rights defenders in Azerbaijan, which had intensified over the summer of 2014”. Conclusion : violation (unanimously). Article 46: Similar violations had been found in four other cases against Azerbaijan. The events examined in all five cases, including the present one, could not be considered as isolated incidents but revealed a troubling pattern of arbitrary arrest and detention of government critics, civil society activists and human rights defenders through retaliatory prosecutions and misuse of criminal law in defiance of the rule of law. The actions of the State stemming from this pattern might give rise to further repetitive applications as reflected by the number of applications raising similar issues which had been either communicated to the Azerbaijani Government or were currently pending before the Court. Having regard to the specific group of individuals affected by the above-mentioned pattern in breach of Article   18, the necessary general measures to be taken by the respondent State had to focus, as a matter of priority, on the protection of critics of the government, civil society activists and human rights defenders against arbitrary arrest and detention and to ensure the eradication of retaliatory prosecutions and misuse of criminal law against this group of individuals and the non-repetition of similar practices in the future. As regards the individual measures to be taken in order to achieve restitutio in integrum , the Committee of Ministers , which was better placed than the Court to assess the specific measures, should supervise, on the basis of the information provided by the respondent State, and with due regard to the applicant’s evolving situation, the adoption of such measures that were feasible, timely, adequate and sufficient to ensure the maximum possible reparation for the violations found by the Court. The Court also found, unanimously, a breach and no breach of Article   3 on the account of the applicant’s conditions of detention during two respective periods; no breach of Article   3 on account of his medical treatment in detention; and a violation of Article 5 §   4 due to lack of effective judicial review of the lawfulness of the detention orders. Article 41: EUR 20,000 in respect of non-pecuniary damage. (See Rasul Jafarov v. Azerbaijan, 69981/14, 17   March 2016, Information Note 194 ; Ilgar Mammadov v.   Azerbaijan , 15172/13, 22   May 2014, Information Note 174 ; Mammadli v.   Azerbaijan, 47145/14 , 19   April 2018; Rashad Hasanov and Others v.   Azerbaijan , 48653/13 et al., 7   June 2018; Lutsenko v.   Ukraine , 6492/11, 3   July 2012, Information Note 154 ; and Tymoshenko v.   Ukraine , 49872/11, 30   April 2013, Information Note   162 )   © Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court. Click here for the Case-Law Information Notes