Ongoing judicial harassment against Mr. Rasul Jafarov

AZE 001 / 0115/ OBS 001.2

Judicial harassment /Arbitrary detention

Azerbaijan

February 27, 2015

The Observatory for the Protection of Human RightsDefenders, a joint programme of the International Federation for Human Rights(FIDH) and the World Organisation Against Torture (OMCT), has received newinformation and requests your urgent intervention in the following situation inAzerbaijan.

New information:

The Observatory has been informed about the ongoingjudicial harassment against Mr. RasulJafarov, who actively participated in the “Sing for Democracy” and the"Art for 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 Azerbaijanigovernment, registration was refused several times by the authorities. Mr.Jafarov was arrested on August 2, on charges of illegal entrepreneurship(Article 192 of the Criminal Code), tax evasion (Article 213) and abuse ofoffice (Article 308). His detention term was extended by three months onOctober 23. On December 12, additional charges were brought against him underArticles 179.3.2 (embezzlement allegedly causing damage to third partiesidentified as “victims” by the investigative body) and 313 (service forgery).If convicted, he could be sentenced to up to 12 years’ imprisonment.

On February 24, a hearing was held in the trialagainst Mr. Jafarov at the Baku Grave Crimes Court. The hearing was attended bya trial observer mandated by the Observatory.

During the hearing, Ms. Gunay Ismayilova wasquestioned as a witness. She said that she took part in a project implementedby Mr. Rasul Jafarov in early 2013, that she received the amount stated in hercontract, and that she signed the corresponding receipt. In response toquestions from the defence, she said that Mr. Rasul Jafarov worked in an officefrom July to December 2013 for which a contract was signed, and that the rentwas paid to the landlord through her. She added that the contract was signed inaccordance with the legislation, and that documents confirming the receipt ofthe rent had always been duly signed.

Earlier during the hearing, the landlord, Mr. JahangirAhmadov, recognised as a “victim” by the investigative body, said that heindeed rented his apartment to Ms. Gunay Ismailova, adding that he did not knowwhy he had been recognised as a victim, and that he had never suffered anymaterial damage from Mr. Rasul Jafarov.

Then, Mr. Nijat Imranli, another person identified asa victim, presented a written testimony to the court. He said the reason why hesubmitted his testimony in writing was that the investigative body haddeliberately distorted his statement, assigning him the victim status althoughhe had not suffered any damage. Mr. Imranli initially wrote a script for adocumentary, and prepared a report for the Human Rights Club. Such serviceswere provided in a contract in two copies signed by him and Mr. Jafarov. Mr.Imranli asserted that he was ready to present the receipt of the amount hereceived to the court, and that such a receipt was written and signed byhimself. Mr. Imranli concluded that he was not a victim, and requested that hisname be removed from the victims' list.

Afterwards, witness Azer Gasimov testified, sayingthat he had signed a contract, prepared a video clip, received the amountstated in the contract, and signed a receipt.

Finally, Mr. Elnur Mammadov, the Chairman ofthe Volunteers International Cooperation Public Union, was also called totestify as a witness. He said that one of the projects led by Mr. Rasul Jafarovwas carried out by his organisation, that all the funds were spent for thepurposes envisaged in the project, and that relevant reports were sent to thedonor. In response to a question regarding the office of the VolunteersInternational Cooperation Public Union, he said that he indeed signed a rentcontract allowing Mr. Rasul Jafarov to use the office for the concerned project.

The hearing was attended by civil societyrepresentatives, international observers, and representatives of the UnitedKingdom, the United States and the Netherlands embassies.

The next hearing will be held on March 5, at 10.30 am.

The Observatory notes that during the February-24hearing, all the persons recognised as “victims” by the investigative body andwho were called to testify eventually called on the court to dismiss theirvictims' status, since they had never suffered any material damage from Mr.Rasul Jafarov. The Observatory hopes that the court will satisfy their demands,in line with the principles of due process and presumption of innocence.

The Observatory more generally calls upon the Azeriauthorities to release Mr. Jafarov immediately since his detention is arbitraryas it only aims at sanctioning his human rights activities, and to put an end to any kind of harassment - including at thejudicial level – against him and all human rights defenders in Azerbaijan.

Background information:

On January 15, 2014, a preparatory hearing was held atthe Baku Grave Crimes Court, where Mr. Rasul Jafarov was put in a double ironcage. Contesting the charges against his client, lawyer Fariz Namazli statedthat in the framework of his human rights activities, Mr. Rasul Jafarov hadalways signed grant agreements with donors as a natural person, that hisaccounts were used only in the framework of an individual entrepreneurship, andthat he never used any attributes of a legal entity. To that end, Mr. Namazlirequested the exclusion from the case file of an audit on Mr. Jafarov’saccounts signed by representatives of the Ministry of Finance, the Ministry ofTaxes and the Council on State Support to NGOs, since these bodies do not haveauthority to investigate the activities of an individual.

In addition, at the same hearing, individuals whom theinvestigative body recognised as “victims” of alleged embezzlement in thepresent case stated they had actually no complaints against Mr. Rasul Jafarov,and asked the court to release him.

Accordingly, Mr. Namazli filed petitions to terminatethe criminal case against his client, to commute Mr. Jafarov’s measure ofimprisonment into house arrest, to audiotape or videotape all the hearings, tolet the defendant seat beside his lawyers during court sessions, and to includeadditional documents in the case file as evidence proving the groundlessness ofthe charges. As the Prosecutor asked the judge reject all these petitions, thecourt only accepted the petition to include additional elements of the defencein the case file, and rejected all others claims of the defendant.

On January 27, 2014, the first hearing on merits tookplace at the Baku Grave Crimes Court, which was monitored by the Observatory inthe framework of an international trial observation mission.

At the beginning of the hearing, three out of fourindividuals whom the investigative body unilaterally recognised as “victims” ofalleged embezzlement by Mr. Rasul Jafarov stated he had actually no complaintsagainst the latter, and asked the court to dismiss his “victim” status. LawyerFariz Namazly subsequently requested the court to remove the “victim” status ofall the individuals concerned, as they had not suffered any damage by Mr.Jafarov. This request was dismissed by the judge.

In addition, at the same hearing, lawyer Fariz Namazliaddressed five petitions to the court, most of which had already beenformulated during the preliminary hearing.

In his first petition, he requested the court to letthe defendant seat beside his lawyers during court sessions.

In his second petition, he requested a microphone tobe installed in the room, so the audience could hear the parties' argumentsclearly, in line with the principle of transparency of debates.

In his third petition, he asked that the detention ofMr. Jafarov be commuted into house arrest, arguing that since the preliminaryinvestigation is over, there is no risk that Mr. Jafarov may hide from the investigation,try to influence criminal proceedings or try to falsify evidence. To supportthis claim, 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 requestedthe court to drop the case and accusations against Mr. Jafarov, arguing inparticular that the latter has always signed grant agreements with donors as anatural person to carry out his human rights activities, using his accountsonly as an individual, and not within a legal entity.

In his fifth petition, Mr. Namazli finally requestedthe court to exclude from the case file an audit on Mr. Jafarov’s accountssigned by representatives of the Ministry of Finance, the Ministry of Taxes andthe Council on State Support to NGOs, since these bodies do not have authorityto investigate the activities of an individual.

While the state prosecutor opposed all theapplications, the court rejected four of them, and only granted a minor oneallowing Mr. Jafarov to sit next to his lawyers.

The prosecutor then read the indictment, describingthe use of grants by Mr. Jafarov as "illegal business andappropriation". The investigation body alleges that Mr. Jafarov isresponsible for a misappropriation of 150,636 manat, and for tax evasionamounting to 6,257 manat (around the same amount in euros).

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

The next hearing was adjourned to February 10, 2015.On that day, at the start of the hearing, Mr. Jafarov refused to testify,arguing that the indictment was not clear to him.

Accordingly, the judge read out the statement Mr.Jafarov provided during the preliminary investigation on July 31, 2014. In hisstatement, Mr. Rasul Jafarov reportedly noted that he founded an organisationnamed the “Human Rights Club” together with two other human rights defenders,and submitted the organisation’s documents to the Ministry of Justice forregistration. However, since the organisation was not registered by theMinistry, he had to sign grant agreements as a physical person. In December of2012, within the framework of the “Art for Democracy” campaign, he received afinancial assistance of 2,000 manat from the United Kingdom embassy to presentthe project and hold an event at the Jazz Center. The event was attended byBritish and French ambassadors as well as other officials.

In his statement, Mr. Jafarov also noted that he hadsigned grant contracts with the National Endowment for Democracy (NED), Peoplein Need and Fritt Ord, that all the activities envisaged in his projects hadbeen implemented, and that information on such implementation was published inthe media. He further stated that grant funds intended for these projects hadbeen transferred to his personal bank accounts.

Mr. Jafarov also highlighted that after the adoptionof the amendments on NGO laws in 2013, prohibiting activities in the frameworkof unregistered NGOs, the activities of the Human Rights Club were suspended.In order to continue his human rights activities, Mr. Jafarov therefore appliedto, and became a member of, the state-registered Legal Protection and AwarenessSociety (LPAS). From then onwards, grant contracts were signed between LPAS andthe German Marshall Fund and NED, and the funds for these projects weretransferred to the organisation’s bank account. On June 9, 2014, during ageneral meeting of LPAS, Mr. Jafarov was elected as Chairman of the Board.However, this election was not registered by the Ministry of Justice.

At the same February-10 hearing, the protocol ofinterrogation of Mr. Jafarov as the accused person was subsequently read out:during this interrogation, Mr. Jafarov confirmed the statement that he hadprovided during the preliminary investigation, and highlighted that he did notconsider himself guilty of the announced charges.

Replying to a question of the public prosecutor,asking why the above-mentioned grants had not been registered, Mr. Jafarovsaid, one the one hand, that the Azeri legislation did not provide anyregistration mechanism for grants received by physical persons and that at thetime, the Ministry of Justice did not have any register in place for grantsreceived by physical persons, and further stated, on the other hand, that afterthe adoption of the legislative amendments prohibiting unregistered NGOs toimplement grants, projects were implemented through the LPAS.

Then, Mr. Anar Jabiyev (Nagilbaz), who was alsodesignated as a “victim” by the investigative body, stated that he had receivedthe full amount of 1,720 manat indicated on a document from Mr. Jafarov tocompose a song calling citizens to participate in the 2013 presidentialelection as well as to record a video clip. Mr. Jabiyev added that in thestatement he provided to the investigative body one year later, he hadmentioned an amount of 1,200 manat as he did not remember the exact amount. Hefurther specified that after returning home, checking his notebook andrealising that the amount was different, he had made an application to theProsecutor General’s Office for re-questioning, which was not granted, and thathe was only questioned again after being assigned the victim status. Heconcluded that he did not have any claim against Mr. Rasul Jafarov, andrequested the repeal of his victim status.

Similarly, during the February-10 hearing, anotheralleged “victim”, Mr. Ahmad Heybatov, who made a video about the election,stated that he received an amount of 1,720 manat, adding that during hisinterrogation, investigators forced him to mention a figure, and that since hecould not remember the exact amount, he said he thought it was around 800manat. However, after returning home and checking the exact figure, he sent aletter to the investigative body, asking them to be allowed to provide astatement with the correct amount, and to be interrogated again. However, hewas likewise interrogated again only after being granted the “victim” status bythe investigative body. He concluded that he did not have any claim against Mr.Rasul Jafarov, and requested the repeal of his victim status.

Furthermore, another person identified as a victim,Mr. Seymur Verdizade, said that he did not know Mr. Rasul Jafarov personally,that he did not have any claims against him either, and that his victim statusshould also be repealed.

The other two persons identified as victims did notattend the February-10 hearing.

Action requested:

Please write to the authorities in Azerbaijan, urgingthem to:

i. Guarantee in all circumstances the physical andpsychological integrity of Mr. Rasul Jafarov and all human rights defenders inAzerbaijan;

ii. Immediately release Mr. Rasul Jafarov, as well as allthe other arbitrarily detainedhuman rights defenders, since their detentions are arbitrary and only aim atsanctioning their human rights activities;

iii. Dismiss the victims' status of all the above-mentionedpersons called to testify, in line with the principles of due process andpresumption of innocence, since they declared during the hearings to have neversuffered any material damage from Mr. Rasul Jafarov;

iv. Put an end to any kind of harassment - including atthe judicial level - against Mr. Rasul Jafarov, and more generally against allhuman rights defenders in Azerbaijan;

v. Conform with the provisions of the UN Declaration onHuman Rights Defenders, adopted by the General Assembly of the United Nationson December 9, 1998, especially:

- Article 1, which states that “everyone has the right,individually and in association with others, to promote and to strive for theprotection and realisation of human rights and fundamental freedoms at thenational and international levels”;

- Article 5, which underscores the right of everyindividual to form, join, and participate in non-governmental organizations; and

- Article 12.2, which provides that the State shall“take all necessary measures to ensure the protection by the competentauthorities of everyone, individually and in association with others, againstany violence, threats, retaliation, de facto or de jure adverse discrimination,pressure or any other arbitrary action as a consequence of his or herlegitimate exercise of his or her rights”;

vi. Amend the domestic NGO legislation and grantlegislation, and bring them in compliance with the opinion 787/2014 of theEuropean Commission for Democracy through Law (Venice Commission), adopted onDecember 15, 2014;

vii. Ensure in all circumstances respect for human rightsand fundamental freedoms in accordance with international human rightsstandards and international instruments ratified by Azerbaijan.

Addresses:

· Mr. Ilham Aliyev, President of theRepublic of Azerbaijan, Office of the President of the Republic of Azerbaijan,19 Istiqlaliyyat 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,Prosecutor General of the Republic of Azerbaijan, Prosecutor’s Office,7 Nigar Rafibeyli St., Baku, Azerbaijan, Fax: (+994) 12 492 06 82, (+994) 12492 26 63, E-mail: z.qaralov@prosecutor.gov.az, info@prosecutor.gov.az

· Mr. Eldar Mahmudov,Minister of National Security, Ministry of National Security of the Republic ofAzerbaijan, Parliament Avenue 14, Baku AZ1006, Azerbaijan, Fax: (+994) 12 493-76-22, E-mail: cpr@mns.gov.az

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

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

· Mr.Fikrat F. Mammadov, Minister of Justice in Azerbaijan,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 theUnited Nations in Geneva, Route desFayards 237, CH-1290 Versoix, Switzerland, Fax: (+41) 22 901 1844, E-mail: geneva@mission.mfa.gov.az

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

Please also write to the diplomaticmissions or embassies of Azerbaijan in your respective country as well as to the EUdiplomatic missions or embassies in Azerbaijan.

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Paris-Geneva, February27, 2015

Kindly inform us of any action undertaken quoting thecode of this appeal in your reply.

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