Ongoing judicial harassment against Mr. Rasul Jafarov

AZE 001 / 0115 / OBS 001.1

Judicial harassment / Arbitrarydetention

Azerbaijan

January 29,2015

The Observatory for the Protection of Human Rights Defenders, a jointprogramme of the International Federation for Human Rights (FIDH) and the WorldOrganisation Against Torture (OMCT), has received new information and requestsyour urgent intervention in the following situation in Azerbaijan.

Newinformation:

The Observatory has been informed by reliable sources about the ongoingjudicial harassment against Mr. RasulJafarov, who actively participated in the “Sing for Democracy” and the"Art of Democracy” movement ahead of the Eurovision song contest in Bakuin May 2012, and who was planning a campaign called “Sports for Human Rights”prior to the European Games which will take place in Baku in June 2015. Mr.Jafarov is also the Head of the “Human Rights Club”, established in December2010. Despite repeated attempts to register his NGO with the Azerbaijani government,registration was refused several times by the authorities. Mr. Jafarov wasarrested on August 2, on charges of illegal entrepreneurship (Article 192 ofthe Criminal Code), tax evasion (Article 213) and abuse of office (Article308). His detention term was extended by three months on October 23. OnDecember 12, additional charges were brought against him under Articles 179.3.2(embezzlement allegedly causing damage to third parties identified as “victims”by the investigative body) and 313 (service forgery). If convicted, he could besentenced to up to 12 years’ imprisonment.

On January 27, 2014, the first hearing on merits took place at the BakuGrave Crimes Court, which was monitored by the Observatory in the framework ofan international trial observation mission.

At the beginning of the hearing, three out of four individuals whom theinvestigative body had unilaterally recognised as “victims” of allegedembezzlement by Mr. Rasul Jafarov (see background information) stated they hadactually no complaints against the latter, and asked the court to dismiss their“victim” status. Other individuals had made similar requests at the previoushearing on January 15. Lawyer Fariz Namazly subsequently requested the court toremove the “victim” status of all the individuals concerned, as they had notsuffered any damage by Mr. Jafarov. This request was however dismissed by thejudge.

In addition, at the same hearing, lawyer Fariz Namazli addressed fivepetitions to the court, most of which had already been formulated during thepreliminary hearing (see background information).

In his first petition, he requested the court to let the defendant seatbeside his lawyers during court sessions.

In his second petition, he requested a microphone to be installed in theroom, so the audience could hear the parties' arguments clearly, in line withthe principle of transparency of debates.

In his third petition, he asked that the detention of Mr. Jafarov becommuted into house arrest, arguing that since the preliminary investigation isover, there is no risk that Mr. Jafarov may hide from the investigation, try toinfluence criminal proceedings or try to falsify evidence. To support thisclaim, Mr. Namazli added that the conditions and length of Mr. Jafarov'stransfer from the detention centre to the court are usually tiresome, thusaffecting his ability to fully defend himself once in the courtroom, inviolation of Article 6 of the European Convention of Human Rights.

In his fourth petition, lawyer Fariz Namazli requested the court to dropthe case and accusations against Mr. Jafarov, arguing in particular that thelatter has always signed grant agreements with donors as a natural person tocarry out his human rights activities, using his accounts only as an individual,and not within a legal entity.

In his fifth petition, Mr. Namazli finally requested the court toexclude from the case file an audit on Mr. Jafarov’s accounts signed byrepresentatives of the Ministry of Finance, the Ministry of Taxes and theCouncil on State Support to NGOs, since these bodies do not have authority toinvestigate the activities of an individual.

While the state prosecutor opposed all the applications, the courtrejected four of them, and only granted a minor one allowing Mr. Jafarov to sitnext to his lawyers.

The prosecutor then read the indictment, describing the use of grants byMr. Jafarov as "illegal business and appropriation". Theinvestigation body alleges that Mr. Jafarov is responsible for amisappropriation of 150,636 manat, and for tax evasion amounting to 6,257 manat(around the same amount in euros).

Mr. Jafarov pleaded not guilty, declared that the charges were unclear,and asked the court to clarify the accusations of “abuse of office” and“forgery”. These requests were all dismissed by the judge.

The next hearing was adjourned to February 10, 2015.

The Observatory deplores the above-mentioned violations of the right toa fair trial, to the presumption of innocence and to the equality of arms, andcalls upon the Azeri authorities to release Mr. Jafarov immediately since hisdetention is arbitrary as it only aims at sanctioning his human rightsactivities, and more generally to put an end to anykind of harassment - including at the judicial level – against him and all humanrights defenders in Azerbaijan.

Background information:

On January 15, 2014, a preparatory hearing was held at the Baku GraveCrimes Court, where Mr. Rasul Jafarov was put in a double iron cage. Contestingthe charges against his client, lawyer Fariz Namazli stated that in theframework of his human rights activities, Mr. Rasul Jafarov had always signedgrant agreements with donors as a natural person, that his accounts were usedonly in the framework of an individual entrepreneurship, and that he never usedany attributes of a legal entity. To that end, Mr. Namazli requested theexclusion from the case file of an audit on Mr. Jafarov’s accounts signed byrepresentatives of the Ministry of Finance, the Ministry of Taxes and theCouncil on State Support to NGOs, since these bodies do not have authority toinvestigate the activities of an individual.

In addition, at the same hearing, individuals whom the investigativebody recognised as “victims” of alleged embezzlement in the present case statedthey had actually no complaints against Mr. Rasul Jafarov, and asked the courtto release him.

Accordingly, Mr. Namazli filed petitions to terminate the criminal caseagainst his client, to commute Mr. Jafarov’s measure of imprisonment into housearrest, to audiotape or videotape all the hearings, to let the defendant seatbeside his lawyers during court sessions, and to include additional documentsin the case file as evidence proving the groundlessness of the charges. As theProsecutor asked the judge reject all these petitions, the court only acceptedthe petition to include additional elements of the defence in the case file,and rejected all others claims of the defendant.

The trial against Mr. Rasul Jafarov is takingplace amidst a wave of ever increasing repression against civil societyorganisations and representatives in Azerbaijan. This trial is takingplace in parallel to that of Mr. IntigamAliyev, a human rights lawyer who has represented more than 100 victimsbefore the European Court of Human Rights. These two trials are the first in a long series intended to silence humanrights defenders. Other defenders currently in pre-trialdetention include Ms. Leyla Yunus, Mr. Arif Yunusov, and Ms.Khadija Ismailova[1].

The Observatory also recalls that in May2014, two leaders of the Election Monitoring and Democracy Studies Centre(EMDSC), Messrs. Anar Mammadli and Bashir Suleymanli, weresentenced to 5,5 and 3,5 years' imprisonment under accusations of “illegalentrepreneurship”. In addition, Talyshdefender Hilal Mammadov continues to serve five years in prisonfollowing unfair proceedings lodged on the basis of spurious criminal offences.

Action requested:

Pleasewrite to the authorities in Azerbaijan, urging them to:

i. Guarantee in allcircumstances the physical and psychological integrity of Mr. Rasul Jafarov andall human rights defenders in Azerbaijan;

ii. Ensure the right to a fair trial, to the presumption ofinnocence and to the equality of arms is fully respected during all trialsagainst human rights defenders in Azerbaijan.

iii.

iv. Immediately release Mr. Rasul Jafarov, as well as all the other arbitrarily detained humanrights defenders, since their detentions are arbitrary and only aim atsanctioning their human rights activities;

v. Put an end to any kind of harassment - including at the judicial level -against Mr. Rasul Jafarov, and more generally against all human rightsdefenders in Azerbaijan;

vi. Conform with the provisions of the UN Declaration on Human RightsDefenders, adopted by the General Assembly of the United Nations on December 9,1998, especially:

- Article 1, which statesthat “everyone has the right, individually and in association with others, topromote and to strive for the protection and realisation of human rights andfundamental freedoms at the national and international levels”;

- Article 5, whichunderscores the right of every individual to form, join, and participate innon-governmental organizations; and

- Article 12.2, whichprovides that the State shall “take all necessary measures to ensure theprotection by the competent authorities of everyone, individually and inassociation with others, against any violence, threats, retaliation, de factoor de jure adverse discrimination, pressure or any other arbitrary action as aconsequence of his or her legitimate exercise of his or her rights”;

vii. Amend the domestic NGO legislation and grant legislation, and bring themin compliance with the opinion 787/2014 of the European Commission forDemocracy through Law (Venice Commission), adopted on December 15, 2014;

viii. Ensure in all circumstances respect for human rights and fundamentalfreedoms in accordance with international human rights standards andinternational instruments ratified by Azerbaijan.

Addresses:

· Mr. Ilham Aliyev, President of the Republic ofAzerbaijan, Office of the President of the Republic of Azerbaijan, 19Istiqlaliyyat St., Baku AZ1066, Azerbaijan, Fax: (+994) 12 492 06 25, (+994)412 92 28 68, E-mail: office@pa.gov.az, office@apparat.gov.az

· Mr. Zakir Garalov, ProsecutorGeneral of the Republic of Azerbaijan, Prosecutor’s Office, 7 Nigar RafibeyliSt., Baku, Azerbaijan, Fax: (+994) 12 492 06 82, (+994) 12 492 26 63, E-mail:z.qaralov@prosecutor.gov.az,info@prosecutor.gov.az

· Mr. Eldar Mahmudov, Minister ofNational Security, Ministry of National Security of the Republic of Azerbaijan,Parliament Avenue 14, Baku AZ1006, Azerbaijan, Fax: (+994) 12493-76-22, E-mail: cpr@mns.gov.az

· Mr. Ramil Usubov, Minister of Internal Affairs, Ministry of InternalAffairs of the Azerbaijani Republic, Fax: (+994) 12 492 45 90

· Mr. Elmar Mammadyarov, Minister of Foreign Affairs,Ministry of Foreign Affairs of the Republic of Azerbaijan, E-mail: katiblik@mfa.gov.az

· Mr. Fikrat F. Mammadov,Minister of Justice inAzerbaijan, Inshaatchilar Prospekti, 1 Baku, Azerbaijan, e-mail: contact@justice.gov.az; Fax (+994) 12 43009 81

· H.E. Mr. Murad N. Najafbayli,Ambassador, Permanent Mission of Azerbaijan to the United Nations in Geneva, Route des Fayards 237, CH-1290 Versoix, Switzerland, Fax: (+41) 22 901 1844, E-mail: geneva@mission.mfa.gov.az

· Embassy of Azerbaijan in Brussels, Avenue Moliere 464,1050 Brussels, Belgium, Fax: (+32) 2 345 91 85

Please also write to the diplomatic missions orembassies of Azerbaijan in your respective country as well as to the EU diplomatic missionsor embassies in Azerbaijan.

[1] The pre-trial detention of Ms. KhadijaIsmailova, which was due to expire on February 5, was prolonged for twoadditional months on January 27 by the Sabayil District Court of Baku.