Information Note on the Court’s case-law 194
March 2016
Rasul Jafarov v. Azerbaijan - 69981/14
Judgment 17.3.2016 [Section V]
Article 18
Restrictions for unauthorised purposes
Human-rights activist arrested and detained for reasons other than those prescribed by the Convention: violation
Facts – The applicant, a prominent human rights activist in Azerbaijan, was arrested in 2014 in connection with criminal proceedings for alleged irregularities in the financial activities of several NGOs. A travel ban was imposed on him, his bank accounts were frozen and he was detained until his conviction and imprisonment in 2015.
In the Convention proceedings he complained, inter alia, that his arrest and detention had led to a restriction of his Convention rights prompted for purposes other than those prescribed in the Convention, in breach of Article 18.
Law – Article 18 in conjunction with Article 5: The Court considered that the charges against the applicant had not been based on a “reasonable suspicion” within the meaning of Article 5 § 1 (c) of the Convention, and thus found a violation of that Article. The assumption that the authorities had acted in good faith was therefore undermined. Although that conclusion in itself was not sufficient to conclude that Article 18 had been breached, the Court noted that the following circumstances considered together convincingly established that the restriction of the applicant’s rights had been based on improper reasons:
(i) The increasingly harsh and restrictive legislative regulation of NGO activity and funding, which had led to the prosecution of an NGO activist for an alleged failure to comply with legal formalities while carrying out his work.
(ii) The numerous statements by high-ranking officials and articles published in the pro-government media, where local NGOs and their leaders, including the applicant, were harshly criticised for contributing to a negative image of the country abroad by reporting on the human-rights situation in the country. What was held against them in those statements was not simply an alleged breach of domestic legislation on NGOs and grants, but their activity itself.
(iii) The applicant’s situation could not be viewed in isolation. 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 custodial sentences. These facts, taken together with the above-mentioned statements by the country’s officials, supported the argument that the applicant’s arrest and detention had been part of a larger campaign to “crack down on human-rights defenders in Azerbaijan, which had intensified over the summer of 2014”.
The totality of the above circumstances indicated that the actual purpose of the impugned measures had been to silence and punish the applicant for his activities in the area of human rights. In the light of these considerations, the Court found that the restriction of the applicant’s liberty had been imposed for purposes other than bringing him before a competent legal authority on reasonable suspicion of having committed an offence, as prescribed by Article 5 § 1 (c) of the Convention.
Conclusion: violation (unanimously).
The Court also found, unanimously, a violation of Article 5 § 1, in that the charges against the applicant were not based on a “reasonable suspicion”, of Article 5 § 4 on account of the lack of adequate judicial review of the lawfulness of his detention, and of Article 34 on account of the impediments to communication between the applicant and his representative put in place by the respondent State.
Article 41: EUR 25,000 in respect of pecuniary and non-pecuniary damage.
(See Ilgar Mammadov v. Azerbaijan, 15172/13, 22 May 2014, Information Note 174; Lutsenko v. Ukraine, 6492/11, 3 July 2012, Information Note 154; and Tymoshenko v. Ukraine, 49872/11, 30 April 2013, Information Note 162)
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This summary by the Registry does not bind the Court.
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