In little more than two decades, Azerbaijan has transformed itself from a constituent part of the Soviet Union into a vibrant, independent republic at the crossroads of Europe and Asia. In that time, it has made itself party to a broad range of international human rights instruments, joined such intergovernmental organisations as the Council of Europe (CoE), of which Azerbaijan assumes the chairmanship of the Council’s Committee of Ministers in May 2014, and the Organization for Security and Co-operation in Europe (OSCE), as well as adopting a constitution containing clear safeguards for fundamental rights, including freedom of expression.
In the same period, however, Azerbaijan has also gained an unfortunate reputation for its treatment of political opposition members, journalists and human rights defenders, with numerous reports of violence against reporters and bloggers, as well as criminal and civil proceedings allegedly brought against journalists for publishing or broadcasting stories critical of the government. Indeed, by one estimate, there were more journalists imprisoned in Azerbaijan in 2013 than in Russia, Saudi Arabia and Uzbekistan combined. Although the government has committed itself to decriminalising defamation, it has also recently explicitly extended the criminal law to cover defamation online, a measure widely viewed as having a chilling effect on online speech. In addition, although the number of prosecutions for criminal defamation has fallen in recent years, a much more disturbing trend of individuals being prosecuted for a range of offences, including hooliganism, drugs and weapons possession has now emerged, in circumstances where it appears that the charges are politically-motivated.
In December 2013, the International Bar Association’s Human Rights Institute (IBAHRI) undertook a fact-finding mission to Baku to assess the extent to which fair trial rights are adhered to during so-called ‘freedom of expression’ cases. The mission report, Azerbaijan: Freedom of Expression on Trial examines how the criminal law in Azerbaijan has been used against journalists and others in cases involving freedom of expression and, in particular, whether the right to a fair trial has been sufficiently protected in such cases.
A key part of the criminal justice framework is the legal profession in Azerbaijan and the role of the Bar Association of Azerbaijan (BAA) in particular. At the outset, it is clear that one of the key obstacles in the fairness of trials is the continuing shortage of defence advocates in Azerbaijan, particularly those willing to represent journalists who have been critical of the government. The report also notes that, despite some attempts at reform, the BAA does not appear to be sufficiently independent of government and this has a serious impact on its ability to protect the interests of both its members and the general public. On the contrary, it appears that the BAA has actively pursued disciplinary measures against BAA members acting on behalf of some journalists, to the detriment of both freedom of expression and the right to a fair trial.
The IBAHRI report also examines the role of the judiciary in Azerbaijan in safeguarding the right to a fair trial, particularly in cases involving journalists who have been critical of the government. The report notes that, while some important reforms have been undertaken in recent years – particularly in relation to the selection of judges – constitutional guarantees of judicial independence have not been matched by judicial independence in practice. As a result, the judiciary does not appear to have played an impartial role in the trial of journalists, but instead sided with the government against its critics. The report notes that judicial independence is the cornerstone of the right to a fair trial, upon which the effectiveness of all other safeguards of a fair trial depend.
Finally, the report examines in detail the various procedural guarantees of a fair trial in Azerbaijani law. It notes serious deficiencies in the availability of effective legal assistance, the right to sufficient time to prepare a defence, the right to call and cross-examine witnesses and the right to a reasoned decision. In light of this, the report sets out various recommendations to ensure that trial judges are wholly independent of governmental influence and ensure full equality of arms between prosecutors and defendants. Lastly, the report notes that the duty of the government to protect journalists is not limited merely to refraining from prosecuting them, but also requires genuine good faith efforts to investigate the harassment of, and violence against, journalists.
In order to strengthen the rule of law in Azerbaijan, 16 specific recommendations to key stakeholders are made. The report recommends that the government take immediate steps to establish effective mechanisms for the protection of journalists consistent with international standards, including the vigorous, timely and effective investigation of any harassment or attacks against journalists, and the prosecution of those responsible.
Azerbaijan: Freedom of Expression on Trial was launched with a high-level panel discussion on Friday 2 May 2014 in Baku, Azerbaijan. Panellists included Dr Eric Metcalfe, English barrister specialising in human rights, public law and EU law, and IBAHRI mission rapporteur, and Mark Stephens CBE, Partner at HowardKennedyFsi specialising in media law, intellectual property rights, defamation, and human rights and IBAHRI Council Member. Nadia Hardman, IBAHRI Programme Lawyer, moderated the discussion.
Click here to watch a short film giving background to the report and highlighting some of the report’s findings and selected recommendations.
Click here to read more about the report launch in Baku, Azerbaijan.