Daily Archives: 14/10/2021

European Court of Human Rights: CASE OF DEMOCRACY AND HUMAN RIGHTS RESOURCE CENTRE AND MUSTAFAYEV v. AZERBAIJAN

14/10/21

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INTRODUCTION

1.  The present two applications concern the restrictions imposed on the bank accounts of the applicants and on the freedom of movement of the applicant by the domestic authorities. The applicants raise various complaints under Articles 6, 11, 13, 18 and 34 of the Convention, Article 1 of Protocol No. 1 to the Convention and Article 2 of Protocol No. 4 to the Convention.

THE FACTS

2.  The applicants’ details and the names of their representatives are listed in the Appendix.

3.  The Government were represented by their Agent, Mr Ç. Əsgərov.

  1. BACKGROUND INFORMATION

4.  The applicant is a lawyer and a member of the Azerbaijani Bar Association. He specialised in protection of human rights and has represented applicants in a large number of cases before the Court.

5.  He is also the founder and chairman of the applicant association, a non-governmental organisation specialising in legal education and protection of human rights. The applicant association was registered by the Ministry of Justice on 30 June 2006 and acquired the status of a legal entity.

6.  On 22 April 2014 the Prosecutor General’s Office opened criminal case no. 142006023 under Articles 308.1 (abuse of power) and 313 (forgery by an official) of the Criminal Code in connection with alleged irregularities in the financial activities of a number of non-governmental organisations. The decision did not provide an exhaustive list of the non-governmental organisations against which criminal proceedings were instituted but referred to the activities of some non-governmental organisations, without citing the name of the applicants.

7.  Soon thereafter the bank accounts of numerous non-governmental organisations and civil society activists were frozen by the domestic authorities within the framework of criminal case no. 142006023. The domestic proceedings concerning the freezing of those bank accounts are the subject of the present two and other applications pending before the Court (see, for example the communicated cases, Imranova and Others v. Azerbaijan, nos. 59462/14 and 4 others; Economic Research Centre and Others v. Azerbaijan, nos. 74254/14 and 5 others; and Abdullayev and Others v. Azerbaijan, nos. 74363/14 and 7 others).

8.  Various human rights defenders and civil society activists were also arrested within the framework of the same criminal proceedings in connection with their activities within or with various non-governmental organisations. The domestic proceedings concerning the arrest and pre-trial detention of some of those human rights defenders and civil society activists have already been examined by the Court (see, for example, Rasul Jafarov v. Azerbaijan, no. 69981/14, 17 March 2016; Mammadli v. Azerbaijan, no. 47145/14, 19 April 2018; Aliyev v. Azerbaijan, nos. 68762/14 and 71200/14, 20 September 2018; and Yunusova and Yunusov v. Azerbaijan (no. 2), no. 68817/14, 16 July 2020).

9.  In July 2014 the applicant was invited to the Prosecutor General’s Office where he was questioned about the applicant association’s activities. Between July 2014 and 2016 he was again questioned, on several occasions, by the prosecuting authorities about the same activities.

  1. IMPOSITION OF THE RESTRICTIONS ON THE APPLICANTS’ BANK ACCOUNTS
    1. In respect of the applicant association’s bank accounts

10.  Following a request submitted by the Prosecutor General’s Office, on 19 May 2014 the Nasimi District Court, relying on Article 248 of the Code of Criminal Procedure (“the CCrP”), issued an attachment order in respect of all bank accounts of the applicant association hosted in the International Bank of Azerbaijan, pending the investigation (cinayət təqibinin davam etdiyi müddət ərzində), in criminal case no. 142006023. The order referred to the prosecuting authorities’ request according to which there was evidence that the amount of 11,993 US dollars, received on 14 May 2014 by the applicant association from the United States of America’s National Endowment for Democracy, constituted the object of a criminal offence and was used “as its instrument”. According to the order, it was amenable to appeal within three days after its announcement. It appears from the transcripts of the Nasimi District Court’s hearing of 19 May 2014 that it was not public and was held in the absence of the applicant association’s representative. The case file does not contain any document indicating that the applicant association was provided with a copy of the order.

11.  According to the applicant association, on an unspecified date in July 2014 its chairman, the applicant, went to the local branch of the International Bank of Azerbaijan where he was informed by a bank official of the attachment order.

12.  On 14 July 2014 the applicant association asked the Nasimi District Court for a copy of the attachment order and received it on the same day.

13.  On 16 July 2014 the applicant association appealed against the Nasimi District Court’s order of 19 May 2014, claiming a breach of Article 1 of Protocol No. 1 to the Convention. It submitted that an attachment order could not be taken in respect of its bank accounts within the meaning of Article 248 of the CCrP since neither the applicant association nor its members were accused in any criminal proceedings. It also noted that an attachment order could be taken within the meaning of Article 248.1 of the CCrP only for the purposes of ensuring the payment of a civil claim or the confiscation of property when provided for by criminal law. However, criminal case no. 142006023 was instituted under Articles 308.1 and 313 of the Criminal Code which did not provide for confiscation of property as a sanction. Lastly, it pointed out that the attachment order was disproportionate since, even assuming that there were doubts about the origin of the money received from the United States of America’s National Endowment for Democracy, the attachment order should have concerned only the impugned amount, and not all the bank accounts of the applicant association. Together with its appeal, the applicant association also lodged a request for restoration of the time-limit for lodging an appeal. In support of its restoration request, it submitted that it had never been informed of the Nasimi District Court’s hearing of 19 May 2014 and had obtained a copy of the impugned order only on 14 July 2014.

14.  On 18 July 2014 the Nasimi District Court dismissed the applicant association’s request for restoration of the time-limit for lodging an appeal. The court found that the applicant association had failed to submit any evidence showing that there was a valid reason for missing the three-day time-limit for lodging an appeal. The decision did not address the applicant association’s arguments concerning the court’s failure to inform it of its hearing of 19 May 2014 or to provide it with a copy of the impugned order of its own initiative.

15.  On 21 July 2014 the applicant association appealed against that decision, reiterating its previous arguments.

16.  On 24 July 2014 the Baku Court of Appeal dismissed the appeal, without examining the applicant association’s arguments in respect of the restoration of the time-limit for lodging an appeal.

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FOR THESE REASONS, THE COURT, UNANIMOUSLY,

  1. Decides to join the applications;
  2. Declares the applications admissible;
  3. Holds that there has been a violation of Article 1 of Protocol No. 1 to the Convention in respect of both applicants;
  4. Holds that there has been a violation of Article 13 of the Convention in conjunction with Article 1 of Protocol No. 1 to the Convention in respect of both applicants;
  5. Holds that there has been a violation of Article 2 of Protocol No. 4 to the Convention on account of the travel ban imposed on the applicant by the prosecuting authorities;
  6. Holds that there has been a violation of Article 2 of Protocol No. 4 to the Convention on account of the travel ban imposed on the applicant by the domestic courts;
  7. Holds that there has been a violation of Article 18 of the Convention taken in conjunction with Article 1 of Protocol No. 1 to the Convention in respect of both applicants and in conjunction with Article 2 of Protocol No. 4 to the Convention in respect of the applicant;
  8. Holds

(a) that the respondent State is to pay the applicants, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement:

(i) EUR 8,000 (eight thousand euros), plus any tax that may be chargeable, to the applicant association in respect of pecuniary and non-pecuniary damage;

(ii) EUR 15,000 (fifteen thousand euros), plus any tax that may be chargeable, to the applicant in respect of pecuniary and non-pecuniary damage;

(iii) EUR 1,900 (one thousand and nine hundred euros), plus any tax that may be chargeable to the applicants, in respect of costs and expenses, to be paid directly into the bank account of their representative, Mr R. Mustafazade;

(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

  1. Dismisses the remainder of the applicants’ claim for just satisfaction.

https://hudoc.echr.coe.int/eng#%22documentcollectionid2%22:%5B%22GRANDCHAMBER%22,%22CHAMBER%22%5D,%22itemid%22:%5B%22001-212139%22%5D

https://www.turan.az/ext/news/2021/10/free/politics_news/en/8592.htm/001

https://larochesuryon.maville.com/actu/actudet_-l-azerbaidjan-condamne-par-la-cedh-pour-avoir-paralyse-le-travail-d-une-ong-_54135-4876008_actu.Htm (FRANCAIS)

https://www.ouest-france.fr/europe/azerbaidjan/l-azerbaidjan-condamne-par-la-cedh-pour-avoir-paralyse-le-travail-d-une-ong-e873f226-2cd4-11ec-9285-f388b2ea32b0

Hong Kong: Arrests under security law are serious concern, UN experts call for review 

12/10/21

Hong Kong, Chine. Le 05septembre 2021. Les vice-présidentes de l'Alliance  de Hong Kong pour le soutien des mouvements démocratiques patriotiques de  Chine Chow Hang-Tung ont publiquement rejeté la demande d'information de la

UN human rights experts* expressed deep concern about the arrest of Hong Kong pro-democracy activist and woman human rights defender Chow Hang-Tung on charges of “incitement to subversion” and being a foreign agent, and urged authorities to refrain from the use of the National Security Law and reconsider its application.

Ms. Chow, a human rights lawyer, was arrested on 8 September 2021. She was a member of the Hong Kong Alliance, an advocacy group which organised the annual candlelight vigil marking the 1989 protests in Tiananmen Square. Several other activists have been similarly arrested and charged under the National Security Law.

“Terrorism and sedition charges are being improperly used to stifle the exercise of fundamental rights, which are protected under international law, including freedom of expression and opinion, freedom of peaceful assembly and the right to participate in public affairs,” the experts said.

The experts have communicated in detailed written analysis their concerns to the Government of the People’s Republic of China about the National Security Law in the Hong Kong Special Administrative Region highlighting the law’s fundamental incompatibility with international law and with China’s human rights obligations.

The experts also raised their concerns over the qualification of “foreign agent” under the National Security Law, in which reference is made to funding received from foreign governments and activities benefitting them. The experts called on the Government to ensure that associations can seek, receive and use funding from foreign or international sources, without undue impediments.

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https://news.un.org/en/story/2021/10/1102882

https://www.frontlinedefenders.org/en/profile/chow-hang-tung

https://en.wikipedia.org/wiki/Chow_Hang-tung

https://www.rfa.org/english/news/china/artist-10132021122322.html

https://www.rfi.fr/cn/%E4%B8%AD%E5%9B%BD/20211012-%E8%81%94%E5%90%88%E5%9B%BD%E4%BA%BA%E6%9D%83%E4%B8%93%E5%AE%B6%E5%AF%B9%E9%A6%99%E6%B8%AF%E6%A0%B9%E6%8D%AE%E5%9B%BD%E5%AE%89%E6%B3%95%E5%AE%9E%E6%96%BD%E9%80%AE%E6%8D%95%E8%A1%A8%E8%BE%BE%E5%85%B3%E5%88%87 (CHINESE)

https://www.notimerica.com/politica/noticia-china-onu-pide-hong-kong-reconsidere-ley-seguridad-nacional-20211013075949.html (ESPANOL)