The trial of Rasul Jafarov: a portrait of injustice

On a cold January day in Baku, dozens of people gathered in front of the Grave Crimes Court, among them opposition politicians, lawyers, journalists, representatives of international and local NGOs, and diplomatic missions. It was the first day of Rasul Jafarov v. the Republic of Azerbaijan, case number 1(101)309-2015.

Jafarov, 31, had already been awake for hours. He later told his lawyer that one of the worst parts of the whole ordeal was the routine before the hearings. He’d be awakened before 6 am and then made to sit for hours, crowded in with all the other detainees waiting to be bused to their various hearings. Once the transport vans were ready, the prisoners would be packed in tight. Every time the driver hit a pothole, the handcuffs would jerk sharply against his wrists, scraping the skin painfully raw.

Nobody really expected a fair trial, but the extent to which the state failed to uphold its international obligations in this case is striking. An Azerbaijani lawyer who closely monitored the trial proceedings and who has spoken with Fariz Namazli, one of Jafarov’s lawyers, identified a series of legal violations, both procedural and substantive.

Jafarov refused to testify, arguing that the charges against him were unclear and that he could not comment without further clarification from the Court. The lack of precision in regard to the charges and the lack of respect for Jafarov’s right to understand and respond to accusations raised a challenge to procedural fairness.

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A lawyer by training, in 2011 Jafarov founded the Human Rights Club as a platform for human rights advocacy in his increasingly repressive country. With his legal education, excellent English, and unwavering commitment to justice, Jafarov quickly became one of the country’s leading campaigners on human rights issues, relentlessly active in various international forums. 

In 2012, he coordinated the ‘Sing for Democracy Campaign’ in an effort to use publicity surrounding the Eurovision Song Contest 2012 held in Baku to shed light on the human rights situation in Azerbaijan. After Eurovision, Jafarov sought to extend the campaign under the name ‘Art for Democracy’, but the events were quickly banned. International hotels in Baku like the Hilton and the Hyatt reneged on room rental agreements under pressure from the authorities.

He was arrested on August 2, 2014. For a year before his arrest, he had worked on issues relating to political prisoners in Azerbaijan, co-founding a group to compile a full list of political prisoners. On June 24, 2014, Jafarov presented the list of political prisoners during a Parliamentary Assembly of the Council of Europe (PACE) session to the organization's new rapporteur on Human Rights in Azerbaijan, Pedro Agramunt.

That list, key to exposing the extent of the regime's assault on human rights, was the final straw. Just a month after his PACE presentation, and soon after the arrest of his working group co-founder Leyla Yunus, Jafarov was taken into custody. He had already been unlawfully banned from leaving the country and his bank accounts had been frozen. Jafarov was charged with illegal entrepreneurship, tax evasion and abuse of office. On December 12, 2014, additional charges were brought against him, including embezzlement and forgery. The defense’s repeated requests to change detention to house arrest were denied.

 

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In 1991, after regaining independence from the USSR, Azerbaijan signed several international agreements, including the European Convention on Human Rights (ECHR) and the International Covenant on Civil and Political Rights (ICCPR).[1] Under these obligations, Azerbaijan agrees to guarantee the right to a fair trial in its courts, and to ensure that everyone receives equal treatment before the law.[2] Under international law, the right to a fair trial is absolute, meaning there are no circumstances under which it may be restricted (although public access to proceedings may be restricted under certain circumstances).[3]

The Azerbaijani state has failed, overwhelming, to uphold these commitments. The violations observed in Jafarov’s case prompted Council of Europe Commissioner for Human Rights Nils Muižnieks to submit a third party intervention for Jafarov’s application to the European Court of Human Rights. In his submission, Muižnieks condemns ‘the unjustified or selective criminal prosecution of journalists and others who express critical opinions’, emphasizing his belief that ‘the arrest and detention of the applicant is an attempt to silence his efforts to report on human rights violations and aims to prevent him from continuing his work.’

THE CHARGES

“Illegal entrepreneurship”

In attempting to run an independent, non-profit NGO, Jafarov quickly found himself entangled in the Kafka-esque Azerbaijani bureaucracy. Despite repeated applications to the Ministry of Justice over several years, Jafarov was unable to gain official registration documents for his NGO, the Human Rights Club.  As a result, he was obliged to operate as a ‘physical person’. There is no legal requirement to register grants with the Ministry as a physical person, and there are no related procedures. But according to the Prosecutor, non-registration of grants constituted a criminal act, despite the fact that Jafarov was able to account for every penny of the grant money.

An additional element of the charge was that without registration, an NGO cannot lawfully operate. But under national legislation, NGOs can operate without state registration, and the defense presented a video in which Ayaz Guliyev, the head of the organization Support to NGOs under the President of Azerbaijan, confirms this.

“Appropriation of large amount of money”

When a donor – a national government, or the European Commission, or an international NGO like Open Society Foundations – awards a grant, they have strict accounting requirements. A grantee organization must provide evidence (receipts, bank statements, etc.) showing that the money was spent in accordance with the project proposal. Twenty past donors to Human Rights Club sent letters to the Court confirming that they were satisfied with how their grant money had been spent. Jafarov’s lawyer argued that even had there been grounds to think Jafarov had misused the funds, it would be a civil case, not a criminal one.

“Abuse of power”

Perhaps the greatest irony of all: Jafarov has been convicted of abuse of power. It is difficult to make any sense of this charge; operating an unregistered NGO carries no criminal liability under national law. Without registration, Jafarov had no legally recognized power to abuse.

“Service Forgery”

A forensic expert brought by the Prosecutors testified that Jafarov had forged documents (for instance, invoices). The charge was that people who had worked for the Human Rights Club had not been paid. But six people – presented by the prosecution as “victims” - all testified that Jafarov had paid them on a regular basis and in compliance with their contracts and with national law. Shavalad Namazov, the first witness for the prosecution, told the Court: ‘Rasul has not committed any kind of criminal act. This hearing is a criminal act against Rasul.’ Thirteen “victims” requested that their status be changed to ‘witnesses’ but the Court refused.

 The defense’s request to question the forensic expert was rejected by the Judge on vague grounds.

Tax evasion

Jafarov cannot be liable for tax evasion, because under Azerbaijani law, grants are not subject to taxes. This charge was in fact overturned by the Baku Court of Appeals last week, reducing his sentence by three months.

PROCEDURAL VIOLATIONS

The iron cage

By keeping the accused in an iron cage during proceedings, the Court was in violation not only of international standards, but also a previous ruling by the Supreme Court of Azerbaijan. This common practice in Azerbaijani courts violates the principle of the presumption of innocence and, under a ruling by the European Court of Human Rights in Svinarenko and Slyadnev v. Russia (2014), constitutes inhuman and degrading treatment. It also prevents the defendant from communicating in confidence with his or her legal representative.  Jafarov’s lawyers submitted a motion appealing this treatment, but it was rejected by the Judge.

Photos

While there is no right to take photos in court under international law, Azerbaijani courts commonly allow it. By banning audio and video recordings during Jafarov’s trial, his right to equality before the court was compromised.

Restricted public access

Under the European Convention, a state can restrict public and press access to court hearings under certain, specific circumstances - for instance to protect national security.[4] None of those circumstances applied to Jafarov’s case. But after the third hearing, which like the first two had attracted significant public attention, the proceedings were moved to a much smaller room in the court building. No explanation was provided, and many who wanted to observe the proceedings were prevented from doing so. The European Convention states that ‘everyone is entitled to a fair and public hearing’; this aims to ensure judicial independence and transparency through public accountability. By restricting public access to the remainder of Jafarov’s trial without justification or explanation (despite a motion by the defense to move the proceedings into a larger room), the Azerbaijani court system overrode that key safeguard.

Judicial bias

The prosecution was permitted to question the victims without interruption, but when the defense began its cross-examination, the Judge interrupted repeatedly, disrupting the flow of the questioning and undermining the defense’s position. The defense’s application to bring its own witnesses was denied without clear reasoning.

Inequality of access to investigation material

Under the European Convention on Human Rights, a defendant must have ‘adequate time and facilities for the preparation of his defence’.[5] During the pre-trial period, the defense was prevented from accessing the case materials relevant to the indictment. This seriously impeded their ability to prepare for trial.  This also breaches the Azerbaijani Constitution and the Criminal Procedural Code (CPC).

Innocent until proven guilty

The investigating body told the Court that Jafarov had failed to provide all the materials they had requested, suggesting that the burden of proof lies upon the accused rather than the accuser – a direct contradiction of the fundamental presumption of innocence principle, enshrined in international law as well as in the Azerbaijani Constitution.

The prosecutor requested a nine-year prison sentence for Rasul Jafarov. After finding him guilty, the court took into account his age, his clean record, and his polite demeanor, and handed down a 6 1/2-year sentence (reduced by three months when the case went to the Appeal Court). If served in full, Jafarov will be 37 years old when he gets out. He is housed at the Kurdakhani Pre-trial Detention Center (Baku Investigative Prison No. 1), along with 27 other political prisoners. His appeal was heard just a couple of days ago

Today, August 2, marks exactly one year since his arrest. A young human rights defender targeted by an increasingly intolerant and authoritarian regime, Rasul Jafarov is yet another casualty of the government’s crackdown against civil society, independent journalists, and political activists. He has joined the swelling ranks of Azerbaijan’s political prisoners—87 according to the new Prisoner Watch monitoring app (developed on the basis of his research).

In 1991, Azerbaijan agreed to uphold the principle that ‘all persons shall be equal before the courts and tribunals.’[6]

Nearly 25 years on, the governing mantra of the pigs in Orwell’s Stalinist dystopia seems far more apt: ‘All animals are equal, but some animals are more equal than others.’

 

[1] Article 6 of the ECHR and Article 9 pertain to this right.

[2] Protocol 12, ECHR.

[3] ECHR, Article 6.1

[4] In full, this caveat reads: ‘the press and public may be excluded from all or part of the trial in the interests of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice.’ (Article 6).

[5] Article 6.3.b.

[6] ICCPR, Article 14

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