29 November 2010
To the Ministers’ Deputies
Committee of Ministers
Council of Europe
F-67075 Strasbourg, France
cc. Department for the Execution of Judgments of the ECHR
DG of Human Rights and Legal Affairs
Council of Europe
F-67075 Strasbourg, France
RE: Case of Eynulla Fatullayev v. AZERBAIJAN (application no. 40984/07), judgment of 22 April 2010
The Media Legal Defence Initiative, ARTICLE 19, the Human Rights House Foundation, Reporters Without Borders, and the World Association of Newspapers and News Publishers are writing with regard to the case of Fatullayev v. Azerbaijan (Application no. 40984/07). On 22 April, the European Court of Human Rights ordered the Azerbaijani authorities to release Mr Fatullayev. This order became final on 4 October 2010.
We understand that following the Azerbaijan Supreme Court’s consideration of the case, on 11 November, Mr Fatullayev’s representatives have written to the Committee to request that the case be referred back to the Court, under Article 46(4). We strongly support that request.
Article 46(4) states: “If the Committee of Ministers considers that a High Contracting Party refuses to abide by a final judgment in a case to which it is a party, it may, after serving formal notice on that Party and by decision adopted by a majority vote of two thirds of the representatives entitled to sit on the Committee, refer to the Court the question whether that Party has failed to fulfil its obligation under paragraph 1.”
On 22 April 2010, the European Court of Human Rights ordered the government of Azerbaijan to “secure the applicant’s immediate release” (order of the Court, paragraph 6). Such orders are very rare; the Court reserves its power to order the release of an applicant only in the most flagrant violations of human rights. The case of Eynulla Fatullayev is such a case.
However, the Government of Azerbaijan has refused to abide by the order. From December 2009 onwards (when the European Court’s judgment was impending), the actions it has taken in Fatullayev’s case have had the sole purpose of ensuring his continued detention and obstructing the implementation of what was already then clear would be a judgment in Fatullayev’s favour. Its acts of obstruction have come in various guises.
First, a criminal case has been started against Mr Faullayev for possession of drugs. As Committee members may be aware, Eynulla Fatullayev has been imprisoned since 20 April 2007, when he was convicted of criminal defamation. In December 2009, the prison authorities allegedly discovered heroin on his person and proceedings were started against him for possession of drugs. On 6 July 2010, Fatullayev was sentenced to two and a half years, his sentence set to begin in full starting from the date of conviction.
The international community has denounced these proceedings as a ploy to make sure that Eynulla Fatullayev would not be released. In December 2009, the OSCE Representative on Freedom of the Media expressed his concern to the Azerbaijani authorities and stated:
“This is a provocation aimed at pre-empting the European Court of Human Rights’ expected verdict, and smearing Fatullayev’s reputation in a country where the media hardly dare to question official news … I visited Eynulla Fatullayev twice in his high-security prison and find allegations of heroin smuggling or possession highly improbable … The Azerbaijani authorities routinely resort to provocations against independent media workers. Azerbaijan’s famous satirical poet Mirza Sakit Zahidov was similiarly accused of drug possession in 2006, and as a result spent more than two years in jail. Azadlig editor Ganimat Zahidov and satirical bloggers Adnan Hajizade and Emin Milli are also in jail on hooliganism charges that are widely seen as made up.” (OSCE Press release, 30 December 2009)
In his report from March 2010, Commissioner for Human Rights of the Council of Europe Thomas Hammarberg stated:”The Commissioner agrees that the new case against Mr Fatullayev lacks credibility. He shares the concerns of many who regard his imprisonment and the new charges against him as an attempt to silence his reporting.”
In June 2010, the Parliamentary Assembly of the Council of Europe issued a resolution on Azerbaijan which stated:”As regards the situation of the media and journalists, the Assembly condemns the arrests, intimidation, harassment, and physical threats of journalists as borne out by the Judgment of the European Court of Human Rights in the case Fatullayev vs. Azerbaijan.”
Second, immediately when the Court’s judgment was made public, on 22 April 2010, the Azerbaijani authorities requested a referral to the Grand Chamber. This prevented the Court’s judgment from becoming final and meant that the government of Azerbaijan would not be required immediately to release Mr Fatullayev. While any party in a case before the European Court has the right to request a referral, in this instance that right was exercised in bad faith, with the sole purpose of obstructing or at least delaying justice for Eynulla Fatullayev.
The Grand Chamber selection panel dismissed the Government’s request for a referral on 4 October 2010, and the order to release Eynulla Fatullayev became final on that day. However, by then the Azerbaijan government had secured a conviction in the above mentioned case for possession of heroin, and therefore had its ‘excuse’ not to release him: it could make the apparently legitimate argument that he had been found guilty on other, entirely unrelated, charges. As stated above, we are strongly of the opinion that this is a perversion of domestic justice solely with the aim of obstructing Eynulla Fatullayev’s release.
Finally, the Supreme Court of Azerbaijan considered the judgment of the European Court on 11 November 2010. While it quashed the defamation charges against him, it also retrospectively extended his prison sentence for tax evasion. The European Court’s 22 April judgment had expressly not ruled on the tax evasion issue, presumably because it had already found a strong violation of Eynulla Fatullayev’s rights (see paragraph 130 of the judgment of 22 April). This enabled the Supreme Court to employ an extremely literal reading of the European Court’s judgment, not only upholding Eynulla Fatullayev’s conviction for tax evasion but extending his sentence from the initial four months to two years and two months, equivalent to the time Faullayev had served.
By taking the above steps, the Azerbaijani authorities have assembled a set of arguments under international and domestic law for refusing to release Mr Fatullayev. The government would argue that these arguments are legitimate. We disagree.
As pointed out by the OSCE Special Representative on Freedom of the Media, it is clear the real and sole motivation behind the actions of the authorities has been to obstruct the fair administration of justice and the implementation of the European Court’s judgment of 22 April. This is a perversion of justice which is not in keeping with Azerbaijan’s obligations under the Council of Europe Charter and the European Convention of Human Rights. Azerbaijan is in flagrant disregard of its obligation to abide by the final judgment of the European Court of Human Rights, and we therefore request that the case be referred back to the Court for its urgent consideration.
We call on you to find accordingly when the case of Fatullayev v. Azerbaijan is considered by the Committee.
Peter Noorlander, Legal Director, Media Legal Defence Initiative
Barbora Bukovskà, Senior Director for Law and Programmes, ARTICLE 19
Maria Dahle, Executive Director, Human Rights House Foundation
Jean-François Julliard, Secretary-General, Reporters Without Borders
Virginie Jouan, Executive Director, Press Freedom and Media Development, World
Association of Newspapers and News Publishers
Picture (c) English PEN