Alert: New guide on best practices to protect detained children from torture
Azerbaijan
23.09.15
Statements

Written contribution to OSCE's 2015 Human Dimension Implementation Meeting (HDIM)



S​eptember 23,2015
Under Working session 4:Fundamental freedoms I (continued), including:
Freedom of peaceful assemblyand association National human rightsinstitutions and the role of civil society in the protection of human rights

The International Federation for Human Rights (FIDH) and the WorldOrganisation Against Torture (OMCT), within the framework of their jointprogramme, the Observatory for the Protection of Human Rights Defenders, wishto draw the attention of the Organisation for the Security and Cooperation inEurope (OSCE) on the ongoing threats and obstacles faced by human rightsdefenders in OSCE Participating States.

In 2014 and 2015, human rights defenders in Eastern Europe andCentral Asia continued to operate in difficult and hostile environments. Repressive laws sanctioning legitimate human rightswork, judicial harassment and annihilation of human rights defenders continuedto be particularly acute in Azerbaijan, Kyrgyzstan, the Russian Federation, andUzbekistan.

The situation particularly deteriorated in Azerbaijanand the Russian Federation, where the civil society has continuedto face acts of reprisals by the authorities while Kyrgyzstan undertook effortsto introduce restrictive legislation drastically reducing human rightsdefenders possibilities to support victims of violations. The situation inUzbekistan remains dramatic with human rights defenders community eitherimprisoned, exiled or silenced. Human rights defenders have continued to besubjected to lengthy pre-trial detention and arbitrary detention followingblatantly unfair trials, in particular in Azerbaijan and Uzbekistan,while attacks and threatsagainst human rights defenders continued, most of the time with impunity,especially in Kyrgyzstan and the Russian Federation.

Arbitrary detention of human rights defenders

Throughout the region, human rights defenders have continued to besubjected to lengthy arbitrary detention as a means to sanction their humanrights activities.

In Azerbaijan, theauthorities have continued an unprecedented crackdown against human rightsdefenders. The latter have been subjected to punitive detention on spuriouscharges and are now serving harsh prison terms, following blatantly unfairtrials. On September 1, 2015, award-winning investigative journalist Ms. KhadijaIsmailova was sentenced to 7,5 years imprisonment on charges of“embezzlement”, “illegal entrepreneurship”, “tax evasion”, and “abuse ofoffice” by the Baku Court of Grave Crimes. On August 13, 2015, Ms. Leyla Yunus,Director of the Institute of Peace andDemocracy (IPD) and a member of OMCT General Assembly, and her husband Mr. ArifYunusov, Head of the Conflictology Department at IPD, were sentenced to 8.5 and 7 years in prison respectively. OnJuly 31, the Supreme Court of Baku upheld the6.3-year prison sentence against Mr. Rasul Jafarov, engaged in thedefense of the rights of political prisoners and an active participant in"Sing for Democracy" and "Art for Democracy", on criminalcharges of “tax evasion”, “illegal entrepreneurship” and “abuse of authority”.On July 21, 2015, the Baku Appeal Court upheld the 7.5-year sentence againstMr. Intigam Aliyev, a prominent human rights lawyer heading the LegalEducation Society. In addition, Mr. Anar Mammadli,Chairperson of the Election Monitoring and Democracy Studies Centre (EMDSC),sentenced to 5.5 years' imprisonment on May 26, 2014 for “tax evasion”,“illegal entrepreneurship”, and “abuse of authority”, as well as Mr. Hilal Mammadov, a defender of therights of the Talysh ethnic minority sentenced in 2012 to 5 years in jail oncharges of “high treason”, also remain behind bars.

In Kyrgyzstan, Mr. Azimjan Askarov, Directorof the human rights organisation “Vozdukh” (Air) based in Jalal-Abad region, isstill serving a sentence to life imprisonment. On September 3, 2014, the KyrgyzSupreme Court rejected Mr. Azimjan Askarov’s appeal for a review of the caseagainst him. Mr. Askarov was unfairly accused of having allegedly ordered theblockade in 2010 of the Bishkek-Osh Highway by some 500 armed protesters, andhaving attacked police officers causing the death of one of them. On July 11,2012, the Jalal-Abad Regional Prosecutor's Office had refused to allow there-opening of the investigation, after new facts were brought to its knowledge,including new testimonies, unanimously asserting that Mr. Askarov was notpresent on the bridge where the policeman was assassinated. Mr. Azimjan Askarovis arbitrarily detained since June 15, 2010.

In Uzbekistan, human rights defenderscontinue to serve long prison sentences, most often in strict regime penalcolonies. Their health usually deteriorates due to poor detention conditionsand due to the regular abuses inflicted upon them. Due to be released on April29, 2015 after serving nine years in prison, Mr. Azamjon Formonovwas convicted to additional five years in prison for "violating prisonrules". His wife was informed about the additional sentence on May 21,2015. Mr. Azamjon Formonov is the former Chairman of theSyrdarya regional branch of the Human Rights Society of Uzbekistan (HRSU).Accused of attempted blackmail he was tried on June 15, 2006, in theabsence of a lawyer of his choice or even of a court-appointed lawyer andsentenced to 9 years in prison for extortion. Other detained Uzbek human rights defenders include Messrs.Ganikhon Mamatkhanov, Nasim Isakov, Yuldash Rasulov,Zafar Rakhimov, Ganikhon Mamatkhanov, Gaybullo Jalilov, SolijonAbdurakhmanov, Dilmurod Saidov, Azam Turgunov, and AbdurasulHudoynazarov.


Judicial harassment, attacks and threats against human rightsdefenders

Human rights lawyers judicially harassed

In the OSCE region, several human rights lawyers remain judiciallyharassed, threatened, attacked or intimidated as an attempt to sanction theirhuman rights activities.

In Azerbaijan,on July 10, 2015, the Nizami DistrictCourt upheld the request filed by the Presidium of the Azerbaijan BarAssociation (ABA) to disbarMr. Khalid Bagirov for alleged inappropriateconduct in court. Mr. Khalid Bagirov is a prominent human rights lawyer whorepresented human rights defenders Ms. Leyla Yunus, Mr. Arif Yunusov, and Mr. Rasul Jafarov. Mr. Bagirov was notified of the date ofthe hearing on the eve of July 10. As a consequence, he did not have sufficienttime to prepare his defence and alert potential independent trial observers,which constitutes a violation of his right to a fair trial. In December 2014, the ABA Presidiumsuspended Mr. Bagirov's licence, hebery preventing him from furtherrepresenting the Yunus couple, Mr. Jafarov and opposition leaders Mr. IlgarMammadov. Mr. Bagirov intended to defend human rights lawyer Intigam Aliyev. Other human rights lawyers continue to faceconstant obstacles to their activities.

In Kyrgyztan, on April14, 2015, an investigator of the Department of Internal Affairs of Karakol Cityissued a decision ordering the removal of human rights lawyer, Ms. Nurkyz Asanova, from the representationof her client, Mr. Ishen Abdrashev. The decision came after Ms. Asanova filed alawsuit on behalf of her client against police officers, accusing them of actsof torture and forced labour.

Previously, on March 27, 2015, officersfrom the Osh Office of the SCNS had searched the Osh offices of the HumanRights Movement “Bir Duino”, and seized material including computers, materialrelated to criminal cases and USB drives containing working documents on humanrights issues. On the same day, SCNS officers also searched and seized materialat the place of residence of human rights lawyers Mr. Khusanbay Salievand Mr. Valerian Vakhitov, who work with FIDH member organisation “BirDuino”. Both lawyers have been working on the violations committed during theOsh events in June 2010, and notably on the case of Ashirov Abdykerim, a lawyerwho had worked with “Bir Duino” on strategic cases and suddenly died on June28, 2013. On June 24. 2015, the Supreme Court of Kyrgyzstan confirmed theunlawfulness of both searches that took place on March 27.

Judicial harassmentand attacks against other human rights defenders and NGOs

In the Russian Federation, onJune 3, 2015, the Groznyoffice of the Joint Mobile Group (JMG) was violently attacked and destroyed byan organised mob. JMG, final nominee for the Martin Ennals Award 2013, is ahuman rights defenders’ platform led by the Committee Against Torture (CAT),member organisation of the OMCT and one of the few human rights organisationsproviding legal aid to the victims of torture in Chechnya. During the attackthat lasted for a whole hour, the equipmentof the JMG, including a vehicle and a security camera, were savagely crushed,incurring important material damage. The police reportedly took no action toprevent the criminal acts despite multiple attempts to reach them by phone. Theattack took place the same day on which about two hundreds protesters gatheredin Grozny to attend a demonstration denouncing "the information waragainst Russia and the Republic of Chechnya". This is not the first attackagainst the JMG in Grozny. In December 2014, the JMG premises were set on fire,causing significant damage while members of the JMG were chased by armedassaulters.

Still in the Russian Federation,the NGO “Planet of Hopes” (Planeta Nadejd) and its Director Ms.Nadejda Kutepova,Nuclear-Free Future award winner in 2011, faced continuous judicial and mediaharassment. Since 2000, "Planet of Hopes" has been defending therights of victims of exposure to increased radiation and has been advocatingfor the review of the legal regime put in place under the Law "On ClosedAdministrative-Territorial Units" (CATU). On May 26, 2015, the Ozersk CityDistrict Court (Chelyabinsk region) sentenced “Planet of Hopes” to pay a fineup to 4,760 Euros for refusing voluntary registration as a "foreignagent". Starting from the next day following the court ruling, a series ofdefamatory reports on national television groundlessly accused Ms. Kutepova ofespionage and violated her right to privacy. This is not the first time that"Planet of Hopes" is subject to harassment. On May 20, 2014, Ms.Kutepova was summoned by a local police division, following instructionsreceived from the Ozersk Prosecutor’s Office. Her criminal record was verifiedas well as the NGO's office lease.

Inaddition, on April 17, 2015 in Moldova, the de facto TransnistrianCommittee for State Security (Transnistrian KGB) issued a statement announcing that "on the territory of the Transnistrian MoldovanRepublic, some civil society organisations financed by the West are engaged inactivities hostile to the Transnistrian statehood". The statement furthertargets the human rights organisation Promo-LEX calling its activitiessubversive for de-facto Transnistrian security. It further reveals that a criminal case has been open, withoutspecifying against whom exactly. Since its establishment, Promo-LEX hasbeen involved in human rights activities in the Transnistrian region byproviding legal protection to human rights defenders, by assistingTransnistrian inhabitants - Moldovan, Russian and Ukrainian citizens - inobtaining justice and by building capacity of local Transnistarian NGOs topromote and defend human rights. It is not the first time that a humanrights organisation working for the development of NGOs in the Transnistrianregion is described as subversive by the Transnistrian de factoadministration. Last year, the local de facto Parliament initiated adraft law on "foreign agents" that specifically targeted civilsociety organisations working on election monitoring and receiving funding fromabroad. The draft bill was adopted in the first plenary reading back inNovember 2014 but has been put on hold.

Thesituation is equally worrying in Hungary, where, since itsre-election on April 6, 2014, the Hungarian Government has led a smearingcampaign against Hungarian human rights NGOs in an attempt to gain control overthem or silence them by hindering their access to funding. On May 30, 2014, theGovernment made public a list of 13 NGO grant recipients it considered to beproblematic for their so-called “left-leaning” political ties. The listincluded prominent NGOs such as Hungarian Civil Liberties Union, TransparencyInternational and the investigative journal atlatszo.hu. These are allorganisations working on anti-corruption, human rights, gender equality andfreedom of speech. All of these organisations had been receiving grants from Norway,for amounts ranging from 4,000 to 120,000€ each. From May to July 2014, manyHungarian high-level government officials, including the Prime Ministerhimself, further accused these NGOs of being “political activists […] paid byforeign interests groups” and “attempting to enforce foreign interests […] inHungary”. These acts of harassment were followed by an extraordinary audit of59 NGOs carried out by the Hungarian Government Control Office (KEHI), to whichthe Norwegian Government later reacted by accusing the Hungary of attempting to“limit freedom of expression”. On May 28, 2015, after having audited its NGOprogramme in Hungary, the Norwegian Government officially declared that suchNGO programme “funded by Norway under the EEA and Norway Grants scheme is beingrun effectively and in line with the legal framework”[1].

InTurkey, a strong security offensive launched by the authoritiesover the past two months under the pretext of countering terrorism followingthe Turkish government’s resolve to mobilise against ISIS has led to graveviolations of the right to life, severe limitations to the right to freedom ofassembly and expression, crackdown on independent media and repressive actionstargeting human rights organisations and activists. Human rights organisationsand activists have been prevented from conducting their activities,particularly when monitoring the situation and providing free legal and medicalaid. The risk of them facing administrative charges and judicialinvestigations, possibly imprisonment, is high. Recently, the house of IHDŞırnak Branch’s President Emirhan Uysal was raided by police forces andlawyer Deniz Sürgüt was arrested and sent to prison. Both are chargedwith accusations of joining a press conference on “autonomy” and being memberof an illegal organisation and carrying and commercialising guns, respectively.

Obstacles to human rights defenders’ freedoms of association,peaceful assembly, expression and information

In 2014-2015, in a number of countries, the authorities continuedto resort to a variety of repressive or restrictive laws to impede the work ofhuman rights defenders with the aim to control civil society organisations. These practices breach Articles 5 and 13 of the UnitedNations Declaration on Human Rights Defenders, which guarantees freedom ofassociation and access to funding for human rights purposes.

In Azerbaijan, on December 17, 2013, the Parliamentadopted a set of amendments to the Law on NGOs, Grants and Taxation, aiming atfurther restricting NGO work. These amendments provide that non-registered NGOscannot be considered recipients of grants anymore. Here we should note constantungrounded refusal by the Azerbaijani authorities to register NGOs, as was thecase with R. Jafarov Human Rights Club. Refusal to register NGOs that are critical of theregime is a commonly used method of repression by Azeri authorities.Unregistered organisations are barred from opening a bank account, work andreceive funding legally. Thus any funding is considered as personal income ofNGO leaders and any NGO activity is seen as illegal entrepreneurship. Theauthorities use this very convenient repressive legal framework to prosecuteactivists and human rights defenders for tax evasion and thus silences criticalvoices, as they did against RasulJafarov, Intigam Aliyev and many other detained human rightsdefenders. Furthermore, registered NGOs are also obliged to register anyfunding from abroad with the Ministry of Justice - a measure that allows theregime to exercise full control of SCOs

On February 3, 2014, the President of Azerbaijan signed furtheramendments to the NGO Law, allowing the authorities to temporarily suspend andpermanently ban national and foreign NGOs in Azerbaijan, and introducing newoffences punishable by fines. Criminal cases were opened against several NGOsthat had received foreign grants. New amendments were signed on November 19,2014, further shrinking the capacity of NGOs to operate independently, byposing additional obstacles to their ability to receive funding.

In Kyrgyzstan, on June 4, 2015, the Kyrgyz parliament voted in favour of the proposed “foreign agents”bill in first reading. The bill will need to pass two more readings and get thepresident’s signature before it comes into law. The bill on “foreign agents” largely draws inspirationfrom the restrictive Russian legislation on the same matter. The provisions ofthe bill could be used to force any NGO that receives foreign funding to eitheradopt the stigmatising label of “foreign agent” or otherwise put an end to itsactivities. The provisions provide for tougher reporting requirements, theviolation of which would be punishable by a suspension up to six-month. Thistext also provides for the criminalisation of NGO leaders “inciting citizens todisobey their civic duties or commit other unlawful acts”, a vague wording thatcould allow for the repression of the legitimate expression of dissent orcriticism. Offenders charged under this provision would risk up to three yearsin prison.

On May 19, 2015, the Human RightsCommittee of the Kyrgyz Parliament was due to release its conclusions regardingthe amendments to the law. In a very concerning pattern, the Human RightsCommittee did not take any position on the bill even though it blatantlycontradicts the Constitution of the Kyrgyz Republic (Art. 4.2, Art. 52) andundermines the right to freedom of association, including the right to accessfunding laid out in Art. 22 of the International Covenant on Civil andPolitical Rights to which the Republic of Kyrgyzstan is a party.

Moreover, a bill on “homosexual propaganda” was adopted by alarge majority of Parliament in first reading in October 2014. The bill aims toimpose administrative and criminal penalties on themedia and on any group or individual expressing “a positive attitude towards“non traditional sexual relations” through the media or information andtelecommunication networks”. Offenders charged under this provisionwould be subject to administrative and criminal penalties of up to one year ofimprisonment. A second reading vote took place on June 24, 2015. This bill wascondemned by civil society and human rights organisations as discriminatory andinfringing the freedoms of expression, assembly and other fundamental freedomsprotected by the Kyrgyz Constitution and international instruments ratified byKyrgyzstan.

In the Russian Federation,in 2015, additional repressive laws wereadopted by legislative bodies to further restrict the work of civil society,including human rights advocacy conducted in the country. On May 19, 2015, theRussian Parliament adopted the law on “undesirable foreign and internationalorganisations”, to criminalise the work of foreign non-profit organisationsthat “threaten the constitutional order, security of the State or its defencecapacity”. If labelled as "undesirable", the activities of suchorganisations will now be banned on the territory of Russia, and banks andother financial institutions will be prohibited from authorising any financialoperation originating from or destined to such an organisations. One of themain goals of the law is to undermine the cooperation of Russian human rightsdefenders and civil society activists with foreign NGOs that make their voicesheard inside and outside the country. Working for an "undesirableorganisation" will be sanctioned by a fine of 900 euros. The repeatedviolation of the law would lead to the criminal responsibility of the NGO’sdirectors and is punished by up to six years of deprivation of liberty. Thisbill adds to an already very restrictive legislation for civil societyorganisations further shrinking the space for freedom of association in thecountry. Indeed, in 2012 the State Duma adopted a law that required NGOs toregister as “foreign agents” if they engage in “political activity” and receiveforeign funding. Because “foreign agent” can be interpreted only as “spy” or“traitor”. Such label aims at discrediting NGOs and obstructing their workingenvironment. Since 2012, over 70 organisations were forced to shut their doors.

On July 8, 2015, the Upper Chamber ofthe Russian Parliament (Federal Council) requested the Prosecutor General andthe Ministry of Foreign Affairs to check the compliance of 12 foreignnon-profit organisations with the new law on “undesirable foreignorganisations”.The Federal Council's list includes several Americanorganisations such as the Open Society Foundation (OSF), the National Endowmentfor Democracy (NED), Freedom House, the International Republican Institute(IRI) and the National Democratic Institute (NDI), two NGOs uniting Ukrainiandiaspora around the world, and an informal group monitoring human rights inCrimea. The inclusion of the latter unregistered group with no organisationalstructure or staff demonstrates the clumsiness of the Russian decision makersin their efforts to silence all critical voices. To date, NED is alreadyincluded into the said list.

On the same day, the Regional Court ofNijegorod (Nijegorodskaya oblast) upheld the previous city court decision toinclude the Committee Against Torture (CAT), OMCT member organisation, into thelist of 'foreign agents'.

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Alongside these ongoingviolations, 2014 and 2015 also witnessed the positive development of Guidelines on Human Rights Defenders by the OSCE Office for DemocraticInstitutions and Human Rights (ODIHR), which was launched on June 10, 2014under the Swiss Chairmanship of the OSCE in Bern, and of the Joint OSCE/ODIHRand Venice Commission Guidelines on Freedom of Association. These documentsprovide for a solid corpus of recommendations based on existing internationaland regional law, standards and practices, and constitute a major normativeprogress for the protection of human rights defenders within the OSCE area.

The Observatorycalls upon all OSCE Participating States genuinely implement all the provisionsof these newly-adopted Guidelines, and believes that these should pave the wayfor the development of a human rights defenders’ protection mechanism at theOSCE level, which would be in charge of monitoring the implementation of thesecommitments.

Recommendations

In view of thesituation of human rights defenders in the OSCE area, the Observatory for theProtection of Human Rights Defenders urges OSCE Participating States to:

· Guarantee in all circumstances thephysical and psychological integrity of human rights defenders in the OSCEParticipating States;

· Put an end to the continuous repressionand harassment of human rights defenders and their organisations;

· Release immediately and unconditionallyall human rights defenders since their detention is arbitrary and only aims atsanctioning their human rights activities;

· Carry out immediate, thorough, impartialand transparent investigations into the threats, attacks and acts ofintimidation mentioned above, in order to identify all those responsible andsanction them according to the law;

· Fully recognise the vital role ofdefenders in the promotion and consolidation of democracy and the rule of law;

· Review their national legislation toconform with international and regional human rights instruments, in particularregarding freedoms of association and assembly;

· Comply with the provisions of theOSCE/ODIHR Guidelines on Human Rights Defenders, the joint OSCE/ODIHR andVenice Commission Guidelines on Freedom of Association and of the Declarationon Human Rights Defenders, adopted on December 9, 1998 by the United NationsGeneral Assembly;

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With respect to the implementation of theOSCE/ODIHR Guidelines on Human Rights Defenders, the Observatory alsocalls upon:

· The OSCE Chairmanship to nominate an OSCEPersonal Representative on the situation of human rights defenders, who couldbe in charge of:

-monitoring the implementation of the Guidelines;

-raise individual cases of violations with national governments

-undertake country visits

-publish periodic reports

· OSCE Participating States to develop protectionmechanisms both nationally and in third-countries, through their diplomaticrepresentations, in coordination, where required, with mechanisms that alreadyexist on the basis of the EU, Swiss and Norwegian Guidelines

· OSCE Participating States to make public pledgeson their commitment to implement the OSCE/ODIHR Guidelines

· OSCE Participating States to systematicallyraise cases of violations of the Guidelines within the framework of the OSCEweekly Permanent Council in Vienna, and ensure regular follow-up.


[1] https://www.regjeringen.no/en/aktuelt/audit-hungary/id2413827/

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