FUEL FOR THOUGHT
The length of the Council of Europe procedure dealing with political prisoners has been based on an assumption that we the prisoners are immortal. At the same time the Council’s haste in endorsing sham elections has been dictated by a fear that the perpetrator government may faint. Why? I will try to write an extensive thing on that contrast after the 4th Annual Ministerial Meeting of the South Gas Corridor to be held in Baku on 15 February 2018, that is during my sixth year behind bars.
Bu gün vəkilim Fuad Ağayev ilə görüşdə Novruz Məmmədovun “danışıqlar” təklifinə baxdıq. Anlaşdıq ki, mənim haqlarımı hakimiyyət tərəfindən tam bərpa edəcək bəraətverici qərarın müqabilində Avropa Şurası Nazirlər Komitəsindən xahiş edə bilərəm ki, Konvensiyanın 46.4 maddəsi ilə əlaqədar Avropa Məhkəməsinə müraciətini geri çağırsın. Bu istiqamətdə qısa, konstruktiv, siyasi söhbətə Novruz Məmmədov razıdırsa, gəlsin danışaq.
“Milli Məclis” ötən həftə gələn ilin büdcəsini müzakirə edəndə əlimə təsadüfən Mikayıl Müşfiqin kitabı düşdü. Deputatları izlərkən oxuduğum bir sətir məni çox güldürdü: “Neft olmasa parlarmı baxışlar?”.
Gələn ilin büdcəsində neft pullarının payı az qala 40% artacaq. Bu da onların qeyri-neft, əslində isə “qeyri-həqiqət sektoru”.
Our 2nd victory at the European Court of Human Rights I would summarize in the following way. The Court Chamber of 7 judges:
1) agreed unanimously that the authorites of Azerbaijan denied me a fair trial after having arrested me illegally and upon their political motivation; and
2) discontented about inconsistencies of the European Court's own case law, the Chamber in fact postponed the further review of the authorities' motivation until "near future" in which the Grand Chamber of the European Court will solve the "open question" concerning the essence of Article 6.
Краткая суть нашей второй победы в Европейском суде по правам человека такова: Палата ЕСПЧ из 7 судей
1) Единогласно решила, что власти Азербайджана осудили меня несправедливо, причем до этого они еще и арестовали меня незаконно и согласно своим политическим устремлениям;
2) Недовольная противоречиями в прецедентном праве самого ЕСПЧ, она фактически отложила дальнейшее рассмотрение устремлений властей до «ближайшего будущего», когда Большая Палата ЕСПЧ разберется наконец с «остающимся открытым вопросом» о сути 6 Статьи Конвенции.
Dilqəm və Şahbazın işi üzrə ərizə Avropa Məhkəməsinə lazımi keyfiyyətdə hazırlanmışdırsa, 2018-də Məhkəmə onların xeyrinə qərar verəcək. Hazırda ikicə şərhim var.
Birincisi, mənim işimə dair Avropa Məhkəməsinin 2014-də verdiyi qərarını 3 ildir icra etməyən Əliyev rejimi, Sarqsyan rejiminə artıq gözəl bəhanə yaradıb ki, Dilqəm və Şahbazı 2018-dən sonra da azı 3 il sərbəst buraxmasın.
İkincisi, Əliyev üçün məni içərdə saxlamaq Şahbaz və Dilqəmi işğalçıların əsirliyindən qurtarmaqdan daha vacibdir. Odur ki, dövlətin dəstəyi ilə hazırlanmış kimi görünən sözü gedən ərizə Dilqəm və Şahbazı Avropada qəsdən uduzdurmaq sonra isə Avropa Məhkəməsinin “ədalətsizliyi” haqda səs-küy salmaq məqsədini güdə bilər.
In Praise of the EIB Of the four banks I had mentioned in https://www.opendemocracy.net/od-russia/ilgar-mammadov/open-letter-from-inmate-of-southern-gas-corridor for global audience only one is busy dashing off an algorithm to connect in material terms, i.e. not in wishful thinking, the availability of funding for the oil&gas projects in Azerbaijan to judicial improvements in the country. That is one outcome of the expulsion of Azerbaijan from the Extractive Industry Transparency Initiative (EITI) in March 2017 following the issues I had raised in the article. Whereas Mr. Chakraboti of the EBRD openly questioned the EITI’s wisdom, thus indirectly advocating for the continued detention of critics of the government, and whereas the World Bank and the ADB approved their own loans without philosophizing on the subject, the European Investment Bank (EIB) is putting forward a mechanism fastened to our judicial performance. That encouraging news I heard recently from a reliable international source. While praising the EIB, I can not condemn the other three banks. Their thinking is as justified as Mr. Patrick Hickey’s, head of the European Olympic Committee (EOC), in advance of the 2015 First European Games in Baku: the EOC should not be a greater champion of the rule of law than the Council of Europe (COE) and the OSCE – which both only routinely criticize some practices of Azerbaijan, but maintain an unrestricted, full-fledged membership profile for the country. One year after the Games Mr. Hickey was arrested in Brasil on corruption charges, but that is a different story.The Original Sin of Election Misobservation The CoE and OSCE instruments of correcting the country’s course got stuck long time ago because right in the beginning the authorities had skilfully prioritized the task of getting – by hook or by a crook – a non-catastrophic election assessment from them. Theories have been built of “an institutional democracy versus the electoral democracy“ to justify the betrayal of the fundamental democratic exercise in exchange for bureaucratic programming. For example, in 2010 Mr. Wolfgang Grossruck, an Austrian MP ad the Head of the OSCE PA Election Observation Mission to Azerbaijan, not only made the critical assessment by the OSCE Office for Democratic Institutions and Human Rights (ODIHR) look controversial at the joint press conference of the missions, but even wrote a follow – up letter of complaint about the ODIHR to the then OSCE Chairman-in-office – foreign minister of … Kazakhstan. A year or two later Mr. Grossruck’s own parliamentary career ended in disgrace, but that is a different story. In 2015, Mr. Jordi, a Spanish MP and the Head of the Parliamentary Assembly of Council of Europe (PACE) microscopic in size Election Observation mission to Azerbaijan, hailed the new parliamentary elections (to which no ODIHR observers were admitted anymore) as a genuine democratic choice of the people. Less that two years later, in March 2017, he flew to Damascus to express support to Mr. Bashar Assad – thus apparently ending in disgrace his own career at the PACE, but that is a different story.The Intolerable Standard The Pace and the OSCE PA election observation principles have been built on the premise that the ODIHR’s approach is “too technical” and that good observers should look at the “broad political picture”. Aside from reserving a vast territory for subjective interpretations and accelerating the erosion of democratic institutions in Azerbaijan, the said “principles” are not copied to address the other pressing problem – of political prisoners: during my 4,5 years in jail the PACE has never adopted a document on my case. Only once and only in passing – in June 2015 – it expressed “concern” about the findings of the European Court (ECtHR) Thus, according to the PACE, Mr. Aliyev’s electoral interests are an immediate matter of “broad political consideration”, while freedom of his critics is a “technical question” subject to slow courts and then – after judicial success – to years and years of procrastination at the CoE Committee of Ministers!Yes, procrastination The CoE Committee of Ministers (CoE) has issued 11 quarterly (!) decisions urging the authorities of Azerbaijan to release me in line with the ECtHR findings. The authorities have been bluntly disregarding the decisions and instead broadcasting reports only on things like the conduct of PACE committee meetings in Azerbaijan and on other formal and ritual acknowledgements of respected membership as the true attitude of the Council of Europe to the Aliyev regime.The Autonomous Flight It is no surprise that the practical death of the OSCE&CoE protections against violation of human rights has compelled the EITI and the EIB to act on their own, i.e. abandon the convenient narrow approach to their public responsibilities. As far as I know, the EIB has put a big question mark on the credibility of Azerbaijan’s judicial system given the refusal of the authorities to execute the ECtHR judgment on my case and, on that grounds, it is inclining to reject any credit allocation to the energy projects associated with the country. Yet, I write this article because the EIB may still be deceived by the holographic motion picture of a fictional cooperation between the CoM and Azerbaijani authorities, which some interested governments and energy companies want to present as a reflection of a material thing. Let me explain.“Who that damned individual thinks he is?” As required by the existing rules, the first 9 quarterly decisions by the CoM (December 2014 – December 2016) had formulated separately the general measures (legislative changes and etc.) and the individual measure (my immediate release) the authorities must adopt in order to execute the ECtHR judgment. However, in March 2016, after visiting me in prison Mr. Pedro Agramunt, PACE President, publicly stated that no individual measure should be applied and that I should be released by a set of general measures instead. I immediately protested to the CoE staff such a compromise of the whole established approach. The CoM continued insisting on the separate individual measure until March 2017 when its 10th quarterly decision put my freedom in a position dependent of the general measures.Why did that happen? That happened because those at the CoM who had always objected any punitive action against Aliyev regime had exhausted all their excuses: all previous quarterly decisions of the Committee – alongside with demanding my release “without further delay” – had always referred to the then ongoing review of my case by the Supreme, then Appellate, and then again by the Supreme courts. Those reviews the authorities had delayed unprecedentally to buy time. However, on 18 November 2016, after the second judgment by the Supreme Court it became clear that the regime and its friends at the CoM need a big new excuse.The Big New Excuse On 10-12 January 2017, two high-ranking officials of the CoE were finally admitted to the country I line with the unique action under the European Convention on Human Rights and Fundamental Freedoms (the Convention) Article 52 initiated by the Secretary General Thorbjorn Jagland in December 2015. The visitors’ task was to obtain information on the intentions of the authorities regarding the ECtHR judgment on my case. Results of the meetings those two gentlemen had conducted in Baku sent some international human rights groups into a jubilant mood: everybody was told that Ilgar will be released in counted weeks. Simultaneously, the state-controlled media and GoNGO people sent signals that I may be released by the regular 17 March presidential pardon decree. A CoM officer called my lawyer and asked him if he could send to the CoM a brief note about such publications. The lawyer was very smart not to do that, because given the CoM addiction pretexts for inaction I nearly exploded when I heard of the request. I immediately wrote a letter to the CoM (available on its website since presumbably 2 March 2017) calling on it to ignore such excuses, particularly because of what the PACE Committee Chair Alan Destexe had told me on 15 February 2017 during his visit to my prison. The human rights organizations’ joy was predictably pre-mature. On 10 February 2017 as part of the process agreed during the Article 52 Mission, Mr Aliyev issued an Executive Order inviting government agencies to submit by 10 April 2017 their proposals on “humanization of the criminal punishment policy”. The 10th CoM decision in March 2017 therefore subordinated my release to the implementation of that Order. Thus, another quarterly opportunity to penalize the regime was wasted. On 8 June 2017, the CoM – one can read in its 11th decision – was told that the “humanization package” will be reviewed by the supplementary session of parliament during June. The CoM readily swallowed that pretext for inaction, too.Old tricks As a result, Mr Aliyev sent to the parliament “as promised” only one of the three documents of the package and only on 29 June. The last sitting of the supplementary session on 30 June had no time to adopt it. The parliament broke up for summer holidays. The first plenary of the autumn session will be held in October. Thus the September 2017 quarterly meeting of the CoM will also apply no punitive measure against Baku and will call on the autumn session of the Azerbaijani parliament to adopt the package. In early December 2017 (the massive experience described above permits me to make this prediction) the regime and its friends at the CoM will assure the Committee that the package will be put to vote in parliament before the New Year, i.e. technically during the autumn session. That does not guarantee though any quick signing of the package in to force by Mr Aliyev or my release as part of its implementation The Committee itself has not seen the package yet, neither member of the rubber-stamp parliament have.Conclusions The authorities may respond to the EIB questions on the quality of our judicial system by referring to the “positive development” noted in the CoM 11th quarterly decision on my case. Probably the whole point of getting that phrase inserted into the decision was the access to the money which the EIB is reluctant to allocate. I want the EIB to know that in reality there is no process, no real development between the CoM and Azerbaijan regarding the execution of the ECtHR judgment on my case. During the first 2,5 years after the judgment the blocking minority of countries at the CoM (decisions are subject to 2/3 majority) has exploited one set of pretexts for inaction: the expectation of redress at local courts. Since March 2017 it invented another pretext: the mysterious “humanization package”.
Once a year since the arrest in 2013 serious European counterparts of the Azerbaijani authorities have been kindly asking me if I would agree to be freed in exchange for a permanent emigration.
I have always replied that for as long as individual freedoms are under a formal protection of our Council of Europe membership I will rely on and employ those protections.
Indeed, if Azerbaijan were not a member, I would choose a different path in politics and thus probably avoid any imprisonment.
After declining the 5th “annual offer” though, I heard an unpleasant story from a contact working in an international organization.
The story went on to say that ahead of the 15 June 2017 resolution of the European Parliament on the human rights situation in Azerbaijan, some pro-regime MEPs had attempted to postpone the voting or at least remove my name from the draft by speculating that a group of European governments and the Azerbaijani authorities have reached an agreement to take me off the country forever. It seems that the acute backpain which I had had reported to public in March and which is gone by now, had helped the sides to invent a “medical reason.” Even a country had been named as a place of my future residence.
Luckily, the trick did not work and the resolution did get passed.
But the unpleasant feeling is staying in me. If some of the European governments, driven by a mistaken perception of their own interests in the area of oil, gas, and geopolitics, are really trying to set for me a future in a violation of European values and of law, they must stop doing that immediately. Otherwise it is a scandal. In what way the Council of Europe is better then than the USSR where local opponents of the system were forcibly moved to other member republics?
P.S. On 8 June the CoE Committee of Ministers laughed at me again by noting in its 11th (!) quarterly decision on my case a “positive development.” Mr Aliyev joined the laughter by submitting a draft law (which the CoM scleroticly believes would release me) on the last day of the supplementary session of parliament. Now the parliament will assemble for plenaries again only in October-December, i.e. after the 12th quarterly tickling by the CoM September Human Rights Meeting. I am afraid they will tickle each other to death of laughter by the end of my prison sentence.
To the 1291st Meeting
(05 and 12 July 2017) of the
Committee of Ministers
Council of Europe
Dear members of the Committee,
In my previous letter which had reached you on 2 March 2017, I had written of the authorities’ custom of using the three months between your Human Rights Meetings for an each-time-new dirty provocation with the aim of compelling me into submission.
As you may recall from the letter, in the year’s first quarter they had terrorized my wife.
This new message I will start with a stern picture of the second quarter and then move to the general question of the worth of the Council of Europe protections against politically motivated imprisonment in a member state.
This part is confidential, not for publication. It will reach only the committee and involved international organizations.
Probably the Council of Europe is not aware yet that 4 October 2017 will mark a turning point in the already strenuous debate on the meaning fullness of Azerbaijan’s membership in the Council of Europe. Let us see below why it will do so.
In our country any prisoner convicted for a serious crime may be effectively released for good behavior having served 2/3 of the sentence. Indeed, absolute majority of prisoners leave their cells 1 – 2.5 years before what the local jargon calls “a calendar”. The 1 – 2.5 years is the de facto policy minimum with which the law on probation release is generally applied. Those who behave bad serve the calendar.
Azerbaijan’s prisons are full of political residents-fresh and old. Among old ones my case has drawn quite a lot of public attention, not least because the European Court of Human Rights and US government’s observers of my trial had called my imprisonment “politically motivated”.
Yet, all efforts to release me on that grounds have failed. In three months that is on 4 October 2017 I will reach the 2/3 of my 7 years sentence. That would entitle me to a de facto release (but will not guarantee it).
If I get released after that date upon stronger Council of Europe pressure, and if subsequently one brings together all these facts to build a logical equation, then it will appear that Azerbaijan’s membership in the Council of Europe equaled only a good behavior even if a political prisoner never stopped his/her political fight from behind bars, i.e. behaved not really “good”.
Was that the intended advantage of our accession to the Council? This is a good (in fact terrible) question to be answered by the June 2017 sessions of the PACE.
Part III. Conclusions
The conclusions below are based on the facts and thoughts reflected in all my letters to the Committee of Ministers and the Council of Europe officials in the past four – and – a – half years, i.e. not only on this one.
1. The authorities will continue attempting new provocations against me, my family, and my supporters every time when the Committee of Ministers postpones punitive action against them for another three months period;
2. In fact, the 11 quarterly postponements by the Committee of Ministers since December 2014 the authorities do perceive as an invitation to exert such a pressure on me which, they believe, would demoralize me into surrender and thus take the burden of the case off the Council of Europe shoulders.
3. I will not surrender, even if some people at the Council of Europe really wanted that to happen;
4. The Council of Europe will suffer a serious reputational blow if I am not released before 4 October 2017 (i.e. before the 2/3 of my sentence which entitle me to an actual probation release anyway), because the Council’s protections against politically motivated imprisonment will proved to be dysfunctional; and
5. My release any time after the 4th of October will make crucially important a fundamental re-design of the Council of Europe protections – at the level of the Convention, of organizational structure, and of personnel.
Part IV. Requests
As the Committee of Ministers had decided in June 2016 to review my case not on quarterly basis but at its every meeting and because its 11th quarterly decision in June 2017 has desparately referred to the June 2017 session of Azerbaijani parliament as the last deferred opportunity for the legislative changes “necessary” for my immediate and unconditional release ( all other expectations which had been textualized in the 10 previous decisions since December 2014 did not work or, better to say, worked for the authorities willing to keep me behind bars):
1. Please activate Article 46.4 of the Convention at the 1291st meeting of the Committee of Ministers on 5 or 12 July 2017, i.e. before departing to the 4th summer vacation since the ECtHR judgment on my case, and
2. Apply other effective sanctions against the Azerbaijani authorities right at the same meeting of the Committee of Minister as well as at the PACE session of 26-30 June 2017. If I am not released by then.
c.c. Mr. Thorbjorn Jagland, Secretary General, CoE.
Mr. Pedro Agramunt, President, PACE.
Human Rights Watch
US Embassy Baku, Azerbaijan
EU Mission, Baku, Azerbaijan
Last week Elin Suleymanov, Azerbaijan’s Ambassador to the US, published an article whereby he basically proposed the US to forget about America’s long-term policy of a democracy flagship in exchange for the 10 new Boeings worth of US $1b purchased by Azerbaijan’s Silk Way Airlines. He included in the “package” some other material benefits provided to the US economy by the regime of Mr. Aliyev. Until now I thought that we buy American goods because they are good and we actually need them. In this regard I recall again one of the first books I had read here in prison back in 2013. “Why Nations Fail” by James A. Robinson and Daron Acemoglu described how the Medieval Silk Way brought deadly plague to Europe in 14th century: infections fleas travelled on the rats which had populated huge caravans. Corruption is the plague of the 21st century. I am sure the Boeings will carry sound ideas, not in infectios bad habits.