Arbitrary Detention in Azerbaijan 2014

With the rise of the Arab Spring in 2011, authoritarian governments around the world responded by rolling-back civic space; in Azerbaijan, a country situated at the crossroads of Eurasia, the government has continued to silence independent voices instead of addressing the legitimate concerns of peaceful protesters and dissidents. Now, the government in Baku has ensnared the very human rights defenders and lawyers who seek to protect the rights of others.

In July and August 2014, the Azerbaijani government arrested some of the country’s most prominent human rights defenders, including the renowned human rights lawyer Intigam Aliyev and activists Rasul Jafarov and Leyla Yunus. They are now being held in pretrial detention on a barrage of criminal charges from tax evasion to treason. As the head of the Legal Education Society, a human rights organization that provides legal support to NGOs and low-income individuals, Intigam Aliyev has submitted more than 200 applications to the European Court of Human Rights in cases of election rigging, abuses of free speech, and fair trial violations.

The Court has begun addressing some of the complaints submitted by him, and he recently made a speech at the at the Parliamentary Assembly of the Council of Europe openly criticizing the Azerbaijani authorities for human rights abuses and cracking down on independent NGOs. It was following these activities that Intigam was arrested on August 8th on charges of tax evasion, illegal business activities, and abuse of official power—crimes he denies ever committing. Aliyev was then sent to pre-trial detention. If the court finds Aliyev guilty of the charges, he faces up to seven years in prison.

This treatment of the human rights defenders violates a number of international treaties to which Azerbaijan is a party, as well as UN General Assembly resolutions which affirm the right of human rights defenders to undertake their important work unhindered. Azerbaijan is party to three of the major international human rights treaties: the European Convention on Human Rights (ECHR), the International Covenant on Civil and Political Rights (ICCPR), and the Convention Against Torture (CAT). All three treaties ban the use of cruel, inhuman, or degrading treatment, and the ECHR and ICCPR stipulate the right to a fair and public trial by an impartial tribunal.

The ECHR also prohibits the use of arbitrary detention, stating that a person may not be deprived of his liberty except through the reasons and procedures provided by established law. The ECHR authorizes pretrial detention of a suspect only on reasonable suspicion of having committed an offense, to prevent an offense, or to prevent escape after having committed an offense. Domestic Azerbaijani law complements this prohibition, providing strict guidelines for when a pretrial detention may be imposed, and requiring the consideration of less restrictive measures such as house arrest or bail.

Complementing theses international treaties, the UN General Assembly passed a Declaration on Human Rights Defenders in 1998. The General Assembly reiterated its concerns and stances as stated in the Declaration in at least five subsequent resolutions, the most recent of which was in 2013. The Declaration was adopted by consensus in the General Assembly and therefore represents a strong commitment by States to its implementation. States are increasingly considering adopting the Declaration as a binding national legislation. The Declaration addresses the protections accorded to human rights defenders (including to develop and discuss new human rights ideas and principles and to advocate their acceptance and to form associations and NGOs), and the duties of states. Such duties include ensuring the protection of everyone against violence, threats, retaliation, adverse criminality, pressure, or other arbitrary action as a consequence of his or her legitimate exercise of the rights referred to in the Declaration; promoting and facilitating the teaching of human rights; and providing an effective remedy for persons who claim to have been victims of a human rights violations.

It is not fully known the scope of political imprisonment in Azerbaijan. The most recent list compiled by local activists contains 98 individual cases. The number of recent detainees, the categorical variety of individuals, and the severity of the charges and length of prison terms are alarming. The trend began around the time of the Arab Spring movements in 2011 and continued through Baku’s hosting of the 2012 Eurovision contest, the presidential elections of 2013, and Azerbaijan’s leadership of the Council of Europe’s Committee of Ministers this year. At each step, the Azerbaijani government has had the opportunity to embrace openness and its obligations under international law – concepts to which it claims to aspire and adhere. Instead, the government of President Ilham Aliyev has ushered in legislation aimed at closing down civil society in the country; harassed journalists, activists, and opposition leaders; and imprisoned those that call attention to this betrayal of its obligations and responsibilities.

We urge lawyers in all nations who enjoy freedom of expression to speak out against such violations. We cannot allow these prisoners of conscience to struggle alone. The UN Declaration on Human Rights Defenders addresses the responsibilities of not just governments, but also of us, of everyone: our duty to promote human rights and to safeguard democracy and its institutions. We must let the Azerbaijani government know that the illegal detention of prisoners of conscience is unacceptable.

---

Asma Peracha, Kexin Zheng, and Janelle Pelli are law students at New York University and members of Law Students for Human Rights. They have partnered with the legal advocacy organization Freedom Now to raise awareness about the imprisonment of human rights defenders in Azerbaijan.

Domestic Violence Victims Seek Protection Using International Human Rights Law

During my law school tenure, a number of cases and decisions caused me great consternation. However, fewer, if any, caused greater gut-wrenching than Castle Rock v.Gonzales, 545 U.S. 748 (2005).

On June 22, 1999, after obtaining a restraining order against her estranged husband, Jessica Gonzales (now Lenahan) contacted Castle Rock (Colorado) police because her husband had taken her 3 little girls from in front of her home during the late afternoon, directly violating the order. At 7:30 PM, police arrived at the home and Ms. Gonzales showed them the restraining order, which read on the back:

“WARNING: A KNOWING VIOLATION OF A RESTRAINING ORDER IS A CRIME … YOU MAY BE ARRESTED.”

Additionally, a further notice to law enforcements stated:

YOU SHALL USE EVERY REASONABLE MEANS TO ENFORCE THIS RESTRAINING ORDER. YOU SHALL ARREST...” (Emphasis added.)

The police officers, having been shown the restraining order and informed that no previous visitation arrangements were made, told Ms. Gonzales to wait until 10:00 PM and if her daughters were not returned by then, to contact the police again. Near 8:30 PM, her husband phoned to tell her that he had taken the girls to an amusement park in Denver, Colorado. At 10:00 PM, the girls had not been returned, so Ms. Lenahan phoned the police. There was no response for 2 hours, so she went to the police station. At 3:10 AM, her husband showed up at the police station and opened fire. After an exchange of shots, the husband was killed and the truck that he arrived in contained the dead bodies of the 3 girls.

Ms. Gonzales sued the town of Castle Rock for violating her Fourteenth Amendment Due Process rights arguing that she had a property interest in having the restraining order enforced, and that the town’s police department did not take her interest seriously. The case reached the Supreme Court, where Justice Scalia delivered a majority opinion holding that Ms. Gonzales did not have such a property interest. Justice Scalia opined that deference should not be given to the Tenth Circuit’s determination that the restraining order was grounded in Colorado law because the order’s language was little more than contractual boilerplate language providing the police with relatively unfettered discretion on how to respond to situations involving restraining orders.

The Castle Rock decision stunned advocates working to eliminate domestic violence and brought into question the U.S.’ sincerity regarding women’s rights, particularly if the highest court of the land could render so callous a decision. 

As advocates searched for a solution, determined that the wrongful state action which blatantly disregarded the protection of women and children’s rights should be remedied, they were confounded by the proposition that the Supreme Court was the final arbiter in the Castle Rock matter. Nevertheless, Columbia Law School students and professors, recalling that “international law is part of our law,” found another avenue of justice for Ms. Lenahan, her children and other victims and survivors beyond the Supreme Court of the United States. Paquete Habana.

Discussed in a recent ABA International Human Rights Committee teleconference, “Domestic Violence as a Human Rights Violation,” link provided infra, while the U.S. may not have ratified Covenant on the Elimination of all forms of Discrimination against Women (CEDAW), the U.S. is nevertheless a Party to other international legal instruments, including, the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights (ICCPR). Thus, the U.S. has an obligation to ensure that the rights provided under these international instruments are protected, and that obligation not only extends to non-U.S. persons, but to U.S. persons as well.

Recognizing that international human rights doctrine provides a basis for remedies against state actors, in 2005, the Human Rights Law Clinic and the American Civil Liberties Union (ACLU) filed a petition on behalf of Ms. Lenahan with the Inter-American Commission of Human Rights, arguing that U.S. law enforcement has an obligation to respond to calls of domestic violence and the U.S. has a duty to hold law enforcement accountable. Specific to international human rights law are charges involving the rights of non-discrimination, family life/unity, Due Process, petition of government, personal security, and special protections for victims of domestic violence. The fundamental issue is whether a government has a duty to remedy the situation when it knows or should know that human rights violations are being committed.

In September 2008, the Commission agreed to hear Gonzales v. U.S. on the merits, and the hearing subsequently took place in October 2008.

Challenges with respect to Gonzales v. U.S. stem from the fact that international orders from the Commission and other international human rights judicial bodies are not technically enforceable. This has been a long-acknowledged disadvantage of international human rights law. However, if the Commission finds for Ms. Lenahan, the U.S. will be morally obligated to ensure its laws comport with international human rights laws that recognize the critical need for protecting the rights of women and children, particularly the abused and vulnerable.

The decision from the Inter-American Commission on Human Rights in Gonzales v. U.S. is pending, perhaps forthcoming this August (2011).

The ABA IHRC teleconference can be accessed through this link. Additional information and resources are available on the Human Rights Law Clinic of Columbia Law School’s web site and on the ACLU’s web site. 

Respectfully,

Max Elliott, J.D.