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Resolution 2322 (2020)
Reported cases of political prisoners in Azerbaijan
1. The issue of reported cases of
political prisoners in Azerbaijan has been of acute concern to the
Council of Europe since before the country acceded to the Organisation. Opinion 222 (2000) on
Azerbaijan’s application for membership of the Council of Europe
called on Azerbaijan “to release or to grant a new trial to those
prisoners who are regarded as ‘political prisoners’ by human rights
protection organisations”. The then Secretary General of the Council
of Europe, following a decision of the Committee of Ministers, appointed
three independent experts to examine cases. These concerns persisted
during the years that followed. Resolution 1272 (2002) on political
prisoners in Azerbaijan called on Azerbaijan “to show a stronger
political will to solve the problem in its entirety”; in Resolution 1359 (2004) on
political prisoners in Azerbaijan, the Assembly urged Azerbaijan
“to find a lasting solution to this problem”; and Resolution 1457 (2005) on
follow-up to Resolution 1359
(2004) on political prisoners in Azerbaijan, the Assembly
“firmly [condemned] the serious dysfunctions of the Azerbaijani
judicial system”, noting that “the Azerbaijani authorities have
continued to arrest and convict hundreds of persons for clearly
political reasons”. The Assembly has continued to express concern
in recent years, as shown by Resolution
2184 (2017) on the functioning of democratic institutions
in Azerbaijan and Resolution
2185 (2017) on Azerbaijan’s Chairmanship of the Council
of Europe: what follow-up on respect for human rights?”, in which
it called on Azerbaijan to “release human rights defenders, journalists
and civic and political activists who were imprisoned on politically
motivated grounds”.
2. In recent years, the European Court of Human Rights (the Court)
has issued a very large number of judgments finding violations of
the European Convention on Human Rights (ETS No. 5, the Convention)
arising from arbitrary arrest and detention of opposition politicians,
civil society activists, human rights defenders and critical journalists,
often combined with violations of their freedoms of expression or
assembly. Six of these judgments, covering a total of nine cases,
exceptionally found violations also of Article 18 of the Convention based
on the authorities’ misuse of criminal law provisions on arrest
and detention for purposes not permitted under the Convention. In
one of these six judgments (Aliyev v. Azerbaijan,
Applications Nos. 68762/14 and 71200/14), the Court stated that
there was 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 Court therefore called
on Azerbaijan to implement general measures focusing, “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. The measures to be taken must 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.”
3. Many of the judgments of the Court finding arbitrary arrest
and detention in Azerbaijan concern administrative detention. These
judgments stated that the unfounded arrest and detention of the
applicants, without proper judicial scrutiny, would have discouraged
them from participating in political rallies and could deter other
opposition supporters and the public at large from attending demonstrations
and participating in open political debate, in violation of the
freedom of assembly. In its supervision of the implementation of
these judgments, the Committee of Ministers has referred to “the
structural problems revealed by the present group of cases”.
4. The judgments of the Court finding a violation of Article 18,
and those in very many other judgments finding arbitrary detention,
establish facts that clearly satisfy the Assembly’s definition of
“political prisoner”, as set out in its Resolution 1900 (2012) on the definition
of political prisoner. The Court’s mention of a number of further
pending cases raising similar issues, its description of a “troubling
pattern”, and its call for general measures to address the causes,
along with the Committee of Ministers’ reference to “structural
problems” underlying misuse of administrative detention, show that
fundamental reforms are necessary if Azerbaijan is to fulfil its
obligations under the Convention.
5. In the first case in which it found a violation of Article 18,
the Court also issued a ruling under Article 46, paragraph 4, of
the Convention that Azerbaijan had refused to abide by its earlier
judgment. The Assembly is concerned that five and a half years after
the original judgment, and eight months since the ruling under Article 46,
paragraph 4, important individual measures have still not been taken
to restore fully the situation of the applicant, Mr Ilgar Mammadov.
This is true also for the other applicants in cases in which the
Court found violations of Article 18.
6. The Assembly also notes the various lists of reported political
prisoners that have been maintained by national and international
civil society organisations. It considers that the Court’s numerous
judgments, and in particular its finding of a “troubling pattern”,
confirm the credibility of the most extensive, detailed and regularly updated
lists. It concludes that persons featuring on these lists can be
presumed to be political prisoners whose detention violates their
human rights and who should therefore be released. It acknowledges
that this presumption is rebuttable, but only after careful review
of the cases by an independent and impartial body. By accepting
this approach, the Azerbaijani authorities would demonstrate their
willingness to resolve individual cases without the need for intervention
by the Court. This would, furthermore, be in accordance with the
principle of subsidiarity underpinning the protection system of
the Convention.
7. The Assembly recalls the findings of the European Committee
for the Prevention of Torture and Inhuman or Degrading Treatment
or Punishment (CPT) showing that detainees, including political
prisoners, are at risk of inadequate conditions and serious ill-treatment
in Azerbaijani police stations, pre-trial detention centres and prisons.
It underlines that the exercise of the fundamental freedoms of expression,
assembly and association should not depend on whether one is brave
enough to face such risks.
8. The Assembly notes the repeated use of presidential pardons
to release convicted prisoners, including many who were reported
to be political prisoners. Whilst the release of wrongly imprisoned
people is always welcome, presidential pardons, which are often
conditional on an apology, do not fully erase the effects of injustice
and their extensive use casts doubt on the proper functioning of
the criminal justice system. They are no substitute for an independent
judiciary that prevents unjust and politically motivated detention
in the first place.
9. The Assembly welcomes the steps taken by the Azerbaijani authorities
in recent years to reform the penitentiary, criminal justice and
judicial systems, including the Executive Order of 2017 and the
Presidential Decree of 2019. It welcomes, for example, the measures
taken to increase judicial independence and the reform of the Law
on the Prosecutor’s Office to remove the reference to its “oversight”
by the president. It welcomes the decrease in the number of people
who are arrested or in custody and the judges’ increasing willingness
to decline prosecution requests for pre-trial detention orders.
It is yet to be convinced, however, that the measures taken thus
far will suffice to achieve the specific results required by the
Court. It will therefore continue to follow developments closely
and looks forward to co-operating with the Azerbaijani authorities
in this respect.
10. When Azerbaijan joined the Council of Europe, it recognised
the existence of political prisoners and co-operated on measures
to release them. Since then, its position has shifted to one of
denial. With the numerous recent Court judgments, in particular
those finding violations of Article 18, that position is no longer
tenable. There can no longer be any doubt that Azerbaijan has a
problem of political prisoners and that this problem is due to structural
and systemic causes. Recent reforms are welcome, but much more remains
to be done if the problem is to be fully and durably resolved.
11. The Assembly therefore calls on:
11.1. the Azerbaijani Parliament and its members and the Azerbaijani
Government to recognise formally all of the findings of the European
Court of Human Rights in its judgments establishing a violation
of Article 18 of the Convention, including the existence of the
“troubling pattern”, as a necessary precondition for the success
of the measures required to implement those judgments fully and effectively;
11.2. the members of the Azerbaijani delegation to the Parliamentary
Assembly and their colleagues in the Azerbaijani Parliament to use
their legislative and executive oversight roles to ensure that all necessary
measures are taken to implement fully and effectively the Court’s
judgments and prevent further recurrence of politically motivated
arbitrary detention;
11.3. the Azerbaijani delegation to the Parliamentary Assembly
to co-operate with the rapporteur in the course of her work on follow-up
to the present Resolution, in accordance with Rule 50, paragraph 1,
of the Assembly’s Rules of Procedure, including by providing information
on the activities of the Azerbaijani Parliament and other authorities
to implement this Resolution;
11.4. the Azerbaijani Government to:
11.4.1. subject
the cases of persons on the most extensive, detailed and regularly
updated lists of alleged political prisoners to review by an independent
and impartial body and to release those found to be political prisoners
in accordance with the definition set out in Resolution 1900 (2012);
11.4.2. take a holistic approach, addressing problems relating
to the judiciary, the Prosecutor General’s office, the police, the
detention system and administrative detention together in a coherent
and co-ordinated way, so as to ensure the non-repetition of politically
motivated arbitrary detention, as required by the European Court
of Human Rights;
11.4.3. take promptly every possible step towards full implementation
of the judgments of the European Court of Human Rights, so as to
ensure, amongst other things, that Mr Ilgar Mammadov and Mr Anar
Mammadli are able to stand as candidates in elections and that Mr Rasul
Jafarov can resume his professional activities as a lawyer;
11.4.4. co-operate fully with the Committee of Ministers in its
supervision of the implementation of judgments of the European Court
of Human Rights, especially under its enhanced procedure, including
by promptly submitting detailed and comprehensive action plans setting
out the measures to be taken and by providing full and up-to-date
information in good time before relevant meetings of the Committee
of Ministers.
12. The Assembly encourages the co-rapporteurs on Azerbaijan of
the Committee on the Honouring of Obligations and Commitments by
Member States of the Council of Europe and the rapporteur on implementation
of judgments of the European Court of Human Rights of the Committee
on Legal Affairs and Human Rights to take account of the present
Resolution in their work.