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]