HISTORY’S JOKE, MY DRAMA: Azerbaijan in the Council of Europe
Speaking in Baku the next day after my promise to delegitimize the contrast between the speedy approval of fraudulent elections and the protracted judicialization of politically motivated deprivation of freedom – both of them as regrettable attributes of the Council of Europe (CoE) – Mr Mikhail Lobov, Director General of Human Rights Policy and Development of the CoE, has helped me much by formulating quite clearly the principle I was going to shatter: “We believe that implementation of the European Convention of Human Rights is not a political issue, but rather a matter of judicial experience.”
Let us see below how that belief works in the world of exclusion from four consecutive elections.
I. Exclusion from the first elections
On 4 February 2013, as soon as I declared an intention to run for presidency at the October elections, the authorities concocted a pretext to arrest me and thus ruin my chances to mount a meaningful campaign.
In May 2013, Mr Jean-Claude Mignone, President of the Parliamentary Assembly of the CoE (PACE), met my deputy Mr Natig Jafarli in Baku only to say that I would be released in the end of year once Mr Ilham Aliyev secures his own third term in office.
In October 2013, Mr Robert Walter, Head of the PACE Election Observation Mission, who met in Baku with opposition candidates as a group, frowned at my another deputy Mr Azer Gasimli – for my non-attendance of the meeting was, according to Mr Walter, disrespectful to the PACE. I do not know what he felt when Mr Gasimli explained the reason of my absence. Mr Walter was probably thinking of his pension: shortly after endorsing the October 2013 polls he retired from politics.
The next day after the vote, Mr Mignone congratulated Mr Aliyev on the occasion of his “confident victory” – still hoping that such a flirtation with Europe’s already favorite dictator may take me out of jail.
All of that was happening at the background of a hue and cry by the authorities maintaining that I had been arrested lawfully and without a political motive.
On 22 May 2014, the European Court of Human Rights (ECtHR) – the body responsible for the judicial side of implementation of the European Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) – found that just the opposite was true: the arrest and the continued detention were both illegal (in breach of the Convention Article 5) and politically motivated (in breach of Articles 5.2 and 18).
II. Exclusion from the second elections
Two months earlier, on 17 March 2014, the authorities had sentenced me the seven years of prison term expiring on 4 February 2020. The sentence was based on the same charges and the same case which the ECtHR had already found improbable.
Inspired by the success of its time-buying hue and cry tactics, the regime started using the new verdict of the local court as a ground for literally shouting at every international who recognized my status of a political prisoner. Just watch the video of Mr Aliyev’s post-speech Q&A session at the PACE in Strasbourg on 24 June 2014.
In order to calm down the situation, on 11 August 2014, Secretary General of the CoE Mr Torbjorn Jagland talked on the phone with Mr Aliyev and they agreed to revive the long time dead Joint Working Group on Human Rights which in the past used to be an avenue to deal with the issue of political prisoners.
On 13 October 2014 the ECtHR judgment became final as an appellation to the Grand Chamber by the Azerbaijani authorities was turned down.
Right after that, Mr Khalid Bagirov, one of my two lawyers, was disbarred in connection with his allegedly disrespectful to the court behavior at my trial. In addition to punishing Mr Bagirov, the regime’s aim was to scare the other lawyer, Mr Fuad Aghayev. The latter did not give up although he himself was imposed a penalty for an alleged attempt to disrupt my trial.
Since 4 December 2014, the CoE Committee of Ministers (CoM) started issuing quarterly decisions calling with growing insistence for my release and restoration of all my rights on the grounds that the ECtHR had found fundamental violations in the initiation of criminal proceedings.
By 13 January 2015, i.e. within three months of execution period of the ECtHR judgment, I was supposed to be freed and starting preparations to lead my movement to the November 2015 general parliamentary elections.
The authorities ignored the ECtHR judgment. Nevertheless, Mr Jordi Yukla, Head of the PACE Observation Mission at the 2015 general polls, concluded that the elections were just fine – with no attention to my continued exclusion from a democracy’s fundamentals.
III. The Council’s two years in prostration
In November 2015, Mr Jagland loudly terminated the Joint Working Group because the authorities exploited its existence in order to continue my detention under the cover of “cooperation” rhetoric.
The next month he initiated an unprecedented action in line with the Convention Article 52 requiring the authorities to explain formal as to how they were going to execute the Court’s judgment on my case.
Unfortunately, the article 52 Mission led by Mr Philippe Boillat, Director General of Human Rights and Rule of Law of the CoE, was able to visit Baku only on 10 January 2017. Here it reached an agreement with the authorities that a major reshuffle of the country’s criminal law will result in my release.
I understand that Mr Boillat, who was retiring at the time, had been reluctant to go into the depth of the prospective legislative changes because he did not want to spoil his relations with the authorities. Earlier, in 2016, I had already informed the CoE about my discounted with his 22 May 2015 letter to the Minister of Justice in which he had almost glorified the Azerbaijani judiciary – after already two CoE quarterly decisions insisting on my release.
As a result, the amendments to the criminal law adopted on 20 October and 1 December 2017 fell short of provisions capable of fulfilling the twelve quarterly CoM decisions and resolutions on my case. So the Article 52 Mission only bought extra time to the authorities.
During the same two years (2015-2017) the authorities received Eur 4,7m in technical assistance through the CoE judicial reform programmes, culminating in the Crystal Scales Award for Judicial Excellence handed over to the Azerbaijani government within walls of the Scottish Parliament on behalf of the CoE in autumn 2017.
In June 2017, Azerbaijan’s Justice Minister spoke with delight about the special chapter allocated to our judicial system in the official periodic publication of the CoE’s CEPEJ (European Commission for the Efficiency of Justice): “European experts came to a conclusion that Azerbaijan can serve as an example to many European countries in the area of judicial reforms, creation of a unique judicial infrastructure, and application of the most up-to-date information technology and innovation.”
IV. Exclusion from the third elections:
The authorities have been able to delay for a long time the CoM action not only by exploiting the Joint Working Group or by misleading the Article 52 Mission or by imitating critically important cooperation in the area of judicial reform, but also by playing my case back and forth between levels of the domestic court system.
The CoM always naively hoped that things would be fixed “this time.” As a result, I have been tried five times – once at the lower level court, twice at the appellate level, and twice at the Supreme Court. Aliyev bought a lot of time!
In one instance, though, I was able to use their tricks against them, i.e. to speed up the trial. On 13 October 2015, the Supreme Court had returned the case file to the appellate level. The Appellate Court had been delaying hearings since then under logistical pretexts. However, when in April 2016 the government scheduled to June the repeat parliamentary elections in one of the country’s 125 constituencies, I immediately registered as a candidate (when your case is at an appellate level Azerbaijani laws permit you to stand as a candidate). Quite predictably, within a few days the Appellate Court conducted my repeat trial, upheld the sentence for the second time, and the Election Commission cancelled my candidacy.
Yet co-rapporteurs of the PACE Monitoring Committee Mr Stephan Shennak and Ceasar Florin Preda, who observed he said elections in June 2016, concluded that things went well there. They were fresh in their capacity, still believing that by flirting with the regime they could win over freedom for me. All that resulted in the third act of my exclusion from elections.
In two months, that is in August 2016 Mr Jafarli was arrested for four pre-trial months on fabricated charges, and Mr Gasimli was banned from traveling abroad. Although in September the authorities did release Mr Jafarli due to tough American pressure, he could not cross the country border before autumn 2017, while the ban on Mr Gasimli is still not lifted.
V. Exclusion from the fourth elections
Otherwise things remained idle till 16 November 2017, when the EctHR found that I had been denied a fair trial (in breach of Article 6.1).
The ECtHR chamber in fact recommended to refer the repeat issue of motivation of the authorities to the Grand Chamber because the case law of the ECtHR was not adequately equipped to deal with the resurfacing of the Article 18 situations in the former Soviet states. I asked my lawyers – Mr Aghayev and the newly contracted Irish/British lawyer of Mr Jeremy McBride – to do so by the due date of 16 February 2018.
On 5 December 2017, after years of admonition, the CoM finally invoked Article 46.4 of the Convention thus threatening to expel Azerbaijan from the CoE for its refusal to execute the ECtHR judgment on my case.
I have always been skeptical about practically of an Article 46.4 action. On 8 April 2015 I even wrote a letter to the Secretary General expressing my doubts. I thought that the CoE must be in possession of more credible tools. However, deprived of any opportunity to research the topic, I surrendered to the idea that the CoE knew what it was doing.
Following the invocation of Article 46.4, the ECtHR formed a Grand Chamber to review the
matter. The Grand Chamber requested the CoM, the authorities, and me to submit our positions before 1 March 2018.
Technically, the said deadline meant that an immediately effective judgment might be delivered by the Grand Chamber before the formal start of the October 2018 presidential elections in August.
Therefore, on 5 February 2018 Mr Aliyev moved the voting date from 17 October to April 11, thus excluding me from an electoral race for the fourth time.
VI. The blockade
Since 5 December 2017 not a single sheet of case-related documents – including the very CoM decision, Grand Chamber’s notifications, my lawyers’ submissions to the Grand Chamber, and etc. – is permitted to reach me. I am completely blindfolded. I have no idea what my lawyers are doing, I can not contribute to their work. If I ask Mr Aghayev to take a serious legal action in that regard, he will certainly be disbarred – which, after the December 2017 prohibition to the non-members of the Bar to practice even civil law, would mean that I want him to die of hunger.
It was on that background that on 14 February 2018 Mr Lobov inaugurated in Baku a new judicial excellence project worth of US$ 400.000, probably smelling another crystal award to the Aliyev regime, and said what he said.
[to be continued]
Həbs üzərində mənəvi və hüquqi qələbəmə baxmayaraq, buradan insanları etiraz nümayişinə çağırmaq düzgün deyil, çünki, “ay camaat, məni buraxdırın” menasını daşıyar. Vətəndaşlarımız qərara gələndə ki, ölkənin tərəqqisi üçün cümhuriyyətçi birisinin azadliğı təcili şərtdir, ictimai yerləri azadlıq nəfəsi ilə özləri dolduracaqlar.
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.