Fair trial for Azerbaijan’s prisoners of conscience
In 2014, Azerbaijani authorities arrested, convicted or imprisoned at least 34 journalists, bloggers, human rights defenders and civil society activists. The arguments of government spokespersons regarding these arrests, combined with similar experiences of arbitrary detentions in previous years, have led many people to perceive the charges against these individuals as fabricated and politically motivated. Two prominent lawyers and human rights advocates are among those currently in custody: Intigam Aliyev and Rasul Jafarov. Their trials began in January 2015.
An analysis of trial procedures by the Helsinki Foundation for Human Rights (HFHR), the Netherlands Helsinki Committee (NHC) and International Partnership for Human Rights (IPHR) raises serious doubts whether the defendants’ fundamental right to a fair trial has been adequately protected. The HFHR, NHC and IPHR call upon national and European governments, intergovernmental bodies, and international organizations to demand fair trials and treatment, in conformity with international law, for Intigam Aliyev, Rasul Jafarov and other activists detained in Azerbaijan. The information currently available leads us to conclude that Intigam Aliyev and Rasul Jafarov are prisoners of conscience and should never have been arrested.
Intigam Aliyev’s hearings coming to an end
Intigam Aliyev is a well-known lawyer and human rights activist in Azerbaijan. He has represented dozens of applicants before the European Court of Human Rights in Strasbourg, France. In 2012, he was awarded the Homo Homini Award by the Czech human rights organisation People in Need. In October 2014, Mr. Aliyev — together with other prominent Azerbaijani human rights activists — was awarded the Andrei Sakharov Freedom Award by the Norwegian Helsinki Committee. On 8 August 2015, he was arrested by the Azerbaijani authorities and subsequently charged with illegal entrepreneurship, tax evasion, service forgery, misappropriation and abuse of office. Mr. Aliyev and his defence team strongly deny these allegations and consider them to be fabricated and politically motivated.
As of today, six hearings have taken place. Several of the early hearings were held in a small courtroom, which prevented many interested (foreign) observers, staff of foreign embassies, NGOs and journalists from attending the hearings. Although observers had improved access to later hearings, the courtroom was crowded and poorly designed, which inhibited comprehensive observation. The defendant was transferred to his hearings in handcuffs and forced to travel in a crowded and poorly ventilated car. During the first two hearings, Mr. Aliyev was held in a metal cage, which considerably hampered his ability to communicate with his defence team.
The court has now heard all the victims in the case. The alleged victims include two lawyers who used to work for Mr. Aliyev, as well as his accountant and her sister. In their testimony, the victims claimed that they have experienced moral injury because some of the documents prepared by the NGO contained their falsified signatures. The court quickly dismissed a motion by the defence to consult a forensic expert in order to determine the authenticity of these signatures.
The court similarly dismissed motions by the defence to release Mr. Aliyev, pending trial, convert his pre-trial detention to house arrest, or to release Mr. Aliyev on bail. They also refused a request to hold the hearing in a larger courtroom, which would enable attendance by a bigger audience of interested parties. Likewise, the court dismissed all motions of the defence with regard to the evidence and the merits of the case. The court ruled against a request by the defence to solicit a bank statement listing the operations on the NGO’s bank account. Another dismissed motion concerned the possibility of requesting a list of registered grants from the Ministry of Justice. While information about Mr. Aliyev’s grants was sent for registration to the Ministry of Justice, the prosecution argues that this did not take place and has maintained the charge of illegal entrepreneurship. In this connection, in a hearing on 10 March 2015, Mr. Aliyev and his lawyers submitted a motion for the return of the 101 documents seized by police. These documents, which have been withheld from the defence, are relevant to Mr. Aliyev’s pending case to the European Court of Human Rights and provide evidence that he did indeed register the grants he received with the Azerbaijan Ministry of Justice. The judges have postponed a decision on this motion for “further consideration”.
Despite the defence’s request to clarify the charges against Mr. Aliyev, especially that of “illegal entrepreneurship”, the prosecution failed to explain which aspect of the defendant’s alleged activities is deemed illegal according to the law. The accusations against Mr. Aliyev have been maintained despite the fact that the defendant ran a registered NGO, which received grants from a variety of sources, including the state of Azerbaijan.
Trial observers have noted with concern the unequal and biased treatment of the defence by the presiding judges. Although both the prosecution and the judges regularly interrupted the testimony of victims and witnesses, defence lawyers were rebuked for doing the same. Furthermore, on several occasions the prosecution was found to be leading the witness and judges appeared to advocate on the victims’ behalf. Objections of the defence were summarily dismissed. Moreover, judges disallowed several lines of questioning that seemed to strengthen the case of the defence and excused a key witness before the defence had finished questioning her. These observations further discredit the independence and impartiality of the proceedings.
In addition, trial observers have noted a number of procedural violations in the hearings of Mr. Aliyev’s case. The first of these concerns the metal cage in which the applicant was held during several hearings. The use of such cages is a common practice in some post-Soviet states, e.g. Russia and Georgia. In this regard, it is vital to emphasize that the European Court of Human Rights, in its ruling of 17 July 2014 (Svinarenko and Slyadnev v. Russia), ruled that this practice amounts to inhuman and degrading treatment. Moreover, the court has failed to substantively address any of the defendant’s motions. In its ruling of 19 April 1993 (Kraska v. Switzerland), the ECHR ruled that it is the duty of the national courts to conduct proper examination of the submissions, arguments and evidence adduced by the parties. Rejecting all of the defence’s motions and requests to further examine evidence may amount to a violation of the right to a fair trial, as enshrined in article 6 of the European Convention on Human Rights. Minutes of the previous hearings were not provided to defence attorneys, as dictated by protocol, and the accused and his lawyers were deprived of the possibility to effectively challenge the evidence adduced by the prosecution. This raises doubts about the degree of compliance with the principle of equality of arms. As all the witnesses have been heard in the case, the trial is coming to an end.
Rasul Jafarov’s hearings: a perpetrator without victim
Rasul Jafarov is a lawyer and prominent human rights activist based in Azerbaijan. He is the founder and chairman of the Human Rights Club and coordinated the ‘Sing for Democracy Campaign’—an effort to use the publicity surrounding the Eurovision Song Contest 2012 in Baku to shed light on the human rights situation in Azerbaijan. In October 2014, Rasul Jafarov, together with other prominent Azerbaijani human rights activists, was awarded the Andrei Sakharov Freedom Award by the Norwegian Helsinki Committee. In the same year, he was nominated for the Human Rights Tulip Award, an accolade presented by the Netherlands Ministry of Foreign Affairs to courageous human rights defenders who promote and support human rights in innovative ways. Rasul Jafarov was arrested on 2 August 2014 and subsequently charged with illegal entrepreneurship, tax evasion and abuse of office. On 12 December 2014, additional charges were brought against him, including embezzlement and forgery. If convicted of these charges, he can be sentenced to up to 12 years in jail. Mr. Jafarov and his defence team strongly deny all the charges brought against him.
During the first hearings in his trial, Mr. Jafarov was placed in a metal cage. He was released from the cage per his own request, as it hampered his ability to communicate with his lawyers. As of today, the court has heard ten witnesses. Although the prosecution considered some of these individuals to be victims in the case against Mr. Jafarov, the witnesses stated that they did not feel victimised by the defendant and that they have no claims against him. According to their testimonies, Mr. Jafarov paid them on a regular basis and all financial documentation conformed to the legal requirements of Azerbaijan. The defendant refused to testify during the trial, arguing the charges against him were unclear and that further explanation was required before he could comment on his case. During the trial, the defendant and one of the witnesses highlighted that they had notified the Ministry of Justice about the election of Mr. Jafarov as the head of the Legal Awareness and Protection Society. However, the Ministry of Justice never provided an official response. Subsequently, the defendant explained that he did not register received grants as a physical person, as there was no legal obligation to do so.
Observers monitoring Mr. Jafarov’s trial have noted the same procedural violations as those noted in Mr. Aliyev’s case. The first concerns the metal cage in which the applicant was held. It cannot be stressed enough that the European Court of Human Rights, in its ruling of 17 July 2014 (Svinarenko and Slyadnev v. Russia), ruled that this practice amounts to inhuman and degrading treatment. In addition, in its ruling of 19 April 1993 (Kraska v. Switzerland), the ECHR ruled that the national courts bear responsibility for properly examining submissions, arguments and evidence adduced by the parties. Acting contrary to these principles may lead to a violation of the right to a fair trial, as enshrined in article 6 of the European Convention on Human Rights. The accused and his lawyers appear to have been deprived of the possibility to effectively challenge the evidence adduced by the prosecution. This raises doubts with regards to compliance with the principle of equality of arms.
