 The impact of the European Convention on Human Rights in new democracies The case of Azerbaijan Ramute Remezaite Legal consultant at the EHRAC, and PhD Candidate at the Law School, Middlesex University “Fighting for Human Rights in Europe’s New Democracies: What Would UK Withdrawal from the ECHR Mean?” Hardwicke Chambers 5 May 2015

Oil-rich former Soviet state with authoritarian regime Acceded to the Council of Europe on 25 January 2001 (ratified on 15 April 2012) ’ Not Free ’ for the last 20 years (Freedom House) Human rights record at it’s lowest since it’s accession to CoE Civil society at risk of extinction No independent media (except the Internet – with consequences offline) 84 out of 100 (Freedom House) 162 out of 178 (Reporters Without Borders)

ECtHR as the only effective judicial mechanism to seek remedy for human rights violations

Among the most commonly violated human rights, as found by the ECtHR, in Azerbaijan  Right to a fair trial  Prohibition of torture, inhuman or degrading treatment or punishment  Property rights  Right to liberty and security  Right to freedom of association  Right to free and fair elections  Right to effective remedy  Right to freedom of expression  Right to life

Annual report of the Committee of Ministers, 2014

Unprecedented crackdown on civil society and human rights in A joint criminal case against a number of foreign and domestic orgs leading to de facto closure of over 20 NGOs and detention of key NGO leaders

How can the Council of Europe mechanisms help human rights defenders in politically motivated cases?  Individual petition to ECtHR to remedy human rights violations  The only effective judicial mechanism to seek justice: political motivation and lack of independence of judiciary  President of Azerbaijan: ‘The European Court will show if there were any human rights violated here’  ECtHR communicated both cases under priority and judgments expected  Other pressure from the Council of Europe  Third party interventions of the Commissioner for Human Rights of CoE in the cases of Azerbaijani human rights defenders  Political pressure of the Committee of Ministers, Secretary General of the CoE, PACE

Process of Decriminalisation of Defamation: Good practice example?  Criminal defamation cases with structural or complex problems:  Mahmudov and Agazade v. Azerbaijan, December 2008  Fatullayev v. Azerbaijan, April 2010  ECtHR: criminal sanctions imposed for insult and defamation are disproportionate to the legitimate aim pursued by the applicants' conviction  Subsidiarity principle narrowed by ECtHR: concrete measure indicated for Azerbaijan to be taken (very rare in ECtHR case law)  Huge pressure by various international and national stakeholders on Azerbaijan to comply with ECtHR judgment  Enhanced supervision measure by Committee of Ministers  Conviction quashed by the Supreme Court – first time in Azerbaijan

Positive Outcomes  Both applicants provided with just satisfaction with their freedom restored (amnesty and presidential pardon respectively)  Unofficial moratorium on the use of imprisonment as a criminal sentence for defamation in 2011: no convictions in  Steps towards reforms of the legal and regulatory framework  Draft law on decriminalization of defamation initiated and communicated to the Venice Commission for assistance  National Programme for Action to raise effectiveness of the protection of human rights and freedoms in Azerbaijan of December 2011  “to elaborate on the proposals on improving the legislation in order to decriminalise defamation ”

Current situation of media freedom in Azerbaijan  Defamation remains criminalised, provisions repealing criminal liability for defamation removed despite recommendations of the Venice Commission (references to practice of Western countries, including the UK)  In May 2013, amendments to the Criminal Code of Azerbaijan have been made, allowing penalties for slander and insult posted on the Internet  At least 10 journalists and bloggers in prison under charges not directly linked to their professional activities (hooliganism, drug possession, tax evasion, among others)

Profile taken from the website of the Observatory for the Protection of Human Rights Defenders

Supervision of the execution of ECtHR judgments: a new space to promote necessary human rights reforms?  118 judgments against Azerbaijan under supervision of the Committee of Ministers (49 under enhanced supervision)  Protocol 14: increased transparency of the execution process as an opportunity for civil society to engage in the process  Pressure by various stakeholders enhance the process for effective implementation of judgments (submissions by NGOs, national human rights institutions and applicants)  Lack of political will v. institutional capacities to effectively implement judgments

UK withdrawal  UK withdrawal from ECHR would send a dangerous signal to other member states that international human rights standards do not have to be followed  This is particularly applicable to governments with zero tolerance to criticism and lack of political will for human rights reforms that may take this as a message that they would remain unpunished for human rights violations  It would put the very core of the Council of Europe at great risk