On 20th May 2019, EIN held its quarterly civil society briefing, ahead of the 1348th CM-DH meeting. Over 40 participants attended the briefing, including participants from the Permanent Representations to the Council of Europe, the EU representation to the Council of Europe and other CoE staff members.
Presentations were given on five cases, including two cases of prominent human rights defenders from Azerbaijan, and two cases from Azerbaijan where the European Court found a series of violations relating to free and fair elections. You can download here the main recommendations submitted by the speakers on each case.
1) Al-Nashiri v Romania (Application No 33234/12)
The case concerns violations of a number of Convention rights on account of the fact that the applicant was the victim of an “extraordinary rendition” operation. The European Court found it established beyond reasonable doubt that Romania hosted a CIA detention site code-named “Detention Site Black”, which operated from 22 September 2003 to 5 November 2005, and that the applicant was secretly detained there from 12 April 2004 to 6 October 2005, or, at the latest, to 5 November 2005. He was subjected to inhuman treatment, on account of an extremely harsh detention regime. He was subsequently transferred by the CIA out of Romania to another of its detention facilities.
The European Court of Human Rights held that this violated his fundamental rights, as did the failure to properly investigate. It was a landmark ruling.
In her presentation, Ms Amrit Singh, Counsel for Mr Al-Nashiri, and Director, Accountability, Liberty and Transparency Division at the Open Society Justice Initiative, sets out why the case is still not being properly implemented. First of all, this is because the events are still not being properly investigated. This is reflected by the Action Plan of the Romanian government: hardly any information is provided about investigations. Ms Singh added that the US commission tasked with investigating is not an independent body. Furthermore, there has still been no official recognition of the prisons by the Romanian government. In addition to the need to properly investigate, the Court’s judgment also required the Romanian government to seek assurances from the US government about the way Mr Al-Nashiri would be treated in the future. However, there is currently no evidence that the Romanian government is requesting assurances in a serious and effective way.
Ms Singh therefore called for the Committee of Ministers to:
· Undertake specific measures to promptly conduct an effective criminal investigation into Romania’s role in the CIA extraordinary rendition and secret detention programme and the violation of Mr Al Nashiri’s rights, including but not limited to:
o Disclosing the full terms of reference of the investigation to Mr Al Nashiri’s counsel as well as to the public;
o Granting counsel for Mr. Al Nashiri unhindered access to the entire case file, including any updated communications on a regular basis;
o Declassifying materials of the investigation to the fullest extent possible, especially with regard to any procedural decisions made by the prosecutor;
o Disclosing to counsel for Mr. Al Nashiri the investigative actions undertaken together with the anticipated time frame for future actions.
· With respect to the Committee of Minister’s March 2019 concerns about “amendments to the Criminal Code aimed at substantially reducing the limitation periods for a number of criminal offences, including torture,” keep the Committee of Minister apprised of developments relating to further judicial review of amendments to relevant statutes of limitations.
· Seek reliable, specific, and binding diplomatic assurances from the U.S. authorities relating to the death penalty and flagrant denial of justice. An executive bilateral agreement between Romania and the United States would meet these requirements.
· Disclose to Mr. Al Nashiri’s counsel all communications to and from the U.S. government in relation to the assurances relating to the death penalty as well as the flagrant denial of justice so that counsel can monitor the Romanian government’s compliance with the Court’s judgment.
· Disclose to Mr. Al Nashiri’s counsel the steps the Romanian government plans to undertake in the near future to ensure that Mr. Al Nashiri is not subjected to the death penalty and to a flagrant denial of justice.
· Disclose to defense counsel for Mr. Al Nashiri in U.S. military commission proceedings all communications to and from the U.S. government in relation to the assurances relating to the death penalty as well as the flagrant denial of justice. The requests for assurances will assist defense counsel in arguing against the death penalty and flagrant denials of justice.
· Public disclosure of all communications to and from the U.S. government in relation to the assurances relating to the death penalty as well as the flagrant denial of justice.
· Issue an official acknowledgement from the highest level of the Romanian government that Romania hosted a secret CIA prison over 2003-2005.
Rule 9.2 Communication from OSJI (September 2016) on the Al-Nashiri v Poland case (Application No 28761/11)
The case of Rasul Jafarov concerns several violations (Articles 5 §§ 1 and 4, as well as Article 18 taken in conjunction with Article 5) suffered by the applicant, a human rights defender, which took place in the context of the criminal proceedings instituted against him in connection with alleged irregularities in the financial activities of a number of NGOs.
The applicant was arrested and placed in detention on remand on 2 August 2014. On 16 April 2015, the first-instance court sentenced him to six and a half years’ imprisonment and to deprivation of the right to hold official positions in state and local authorities, or to engage in entrepreneurial activity, for a period of three years.
The European Court found, in particular, that the arrest and detention on remand took place in the absence of any reasonable suspicion that he had committed an offence. It also found that the domestic courts had limited themselves in all their decisions to an automatic endorsement of the prosecution’s requests without having conducted a genuine review of the lawfulness of the detention (violations of Article 5 §§ 1and 4).
Intigam Aliyev was prosecuted for ‘illegal entrepreneurship’, ‘large-scale tax evasion’ and ‘aggravated abuse of power’ in August 2014. He was convicted and sentenced to 7 ½ years’ imprisonment in April 2015. The European Court found violations of Arts 3, 5(1), 5(4), 8, 18 in conjunction with Arts 5 & 8.
Mr Jafarov and Aliyev themselves present their cases and why they are still pending implementation through video messages (see below).
Philip Leach, from the European Human Rights Advocacy Centre, outlines how the cases of both Mr Jafarov and Aliyev are examples of the Azerbaini government cracking down on human rights activities. He continues by explaining that the Court’s finding in the case of Mr Jafarov are extremely strong, as they stated that the criminal proceedings were designed to silence and punish him. It ordered substantial damages.
The question is what the Committee of Ministers should order as a result of a violation under Article 18. Philip Leach argues that the cases should be re-opened, given the strength of the Court’s findings in its judgment. Therefore, in the case of Mr Jafarov, the CM should specifically order for the damages to be paid in full, and for the criminal case to be re-opened. In the case of Mr Aliyev, Mr Leach sets out the judgment of the Court under Article 46, including the explicit requirement that measures should be taken to restore Mr Aliyev’s ability to carry out his professional activities.
He therefore calls for the following from the Committee of Ministers:
1) Payment of just satisfaction
2) Re-examination of criminal cases
3) Return of all documents and equipment of his NGO
4) Access to frozen bank accounts
5) Lifting of travel ban
Finally, Mr Leach calls for general measures to be requested:
- An action plan on these cases
- Reform of law and practices on status of NGO and grants
- Ensuring enabling environment for human rights defenders
- End all harassment of human rights defenders
- Run investigations into such harassment
These cases concern various violations of the right to free elections (Article 3 of Protocol No. 1) of the applicants (members of the opposition parties or independent candidates) in the context of the parliamentary elections of 2005 and 2010.
Tural Aghayev, lawyer at the Monitoring and Democracy Studies Centre from Azerbaijan, informs the delegates that, whilst payment of just satisfaction has been made in the Namat Aliyev case, Mr Mammadli still has not received any payment so far. Mr Mammadli would, in addition, still suffer restrictions to certain rights and freedoms. In particular, Mr Mammadli is still not permitted to stand in elections. Mr Aghayev therefore calls for the payment of just satisfaction and for these restrictions to be lifted.
On the general measures, Mr Aghayev underlines in particular three remaining problems related to: the composition of the election commissions, the registration of candidates and the expert groups reviewing the complaints. He sets out the ongoing problems with free and fair elections in Azerbaijan and puts forward various recommendations to overcome them.