Judges, Citing Bogus Drug Charges, Refuse to Comply With European Court Judgment
November 13, 2010
The government has a clear obligation to release Fatullayev immediately and end this terrible miscarriage of justice. Instead, the authorities are fabricating new ways to keep him imprisoned and openly flaunting their international commitments.
Giorgi Gogia, South Caucasus researcher at Human Rights Watch

(New York) - The Azerbaijan Supreme Court has refused to abide by a binding European Court of Human Rights judgment to release a wrongfully imprisoned, outspoken journalist, Human Rights Watch said today. The authorities used trumped up charges to continue to hold Eynulla Fatullayev, one of the country's most prominent journalists.

On November 11, 2010, the extraordinary plenary meeting of the Azerbaijani Supreme Court reviewed the October European Court of Human Rights findings that Fatullayev had been wrongly charged and imprisoned. The Supreme Court dropped the criminal charges involved in the case, but ignored the key requirement in the judgment to free Fatullayev immediately. Fatullayev remains imprisoned on drug possession charges brought while he was in prison, which many observers consider bogus.

"The government has a clear obligation to release Fatullayev immediately and end this terrible miscarriage of justice," said Giorgi Gogia, South Caucasus researcher at Human Rights Watch. "Instead, the authorities are fabricating new ways to keep him imprisoned and openly flaunting their international commitments."

The European Court of Human Rights is the court for the Council of Europe, and the ultimate arbiter of compliance with the European Convention on Human Rights. It found in April that Azerbaijan had violated Fatullayev's right to freedom of expression in a grossly disproportionate manner by imprisoning him, and, in an exceptional move, called for his immediate release. On October 4, the decision became final and legally binding on Azerbaijan, after the government's unsuccessful attempt to appeal the judgment to the court's Grand Chamber.

Fatullayev has been in prison since April 2007, following his conviction for civil and criminal defamation for an internet posting about an episode during the war between Azerbaijan and Armenia. Six months after the first conviction, he was found guilty of threatening terrorism and inciting ethnic hatred, based on another set of articles, resulting in a total sentence of eight-and-a- half years. The European Court held that each conviction was a violation of the European Convention on Human Rights. He had also been convicted of tax evasion during the second trial.

In its review of the case on November 11, the Azerbaijan Supreme Court decided to drop the defamation charges, as required by the European Court, but increased his sentence for tax evasion from the initial four months handed down by the court, to two years and two months, equivalent to the time Fatullayev has served.

However, the Supreme Court refused to implement the European Court's instruction to free him immediately, using the spurious drug possession charges as an excuse to hold him.

Those charges stem from a cell inspection on December 29, 2009, when guards allegedly found 0.223 grams of heroin in Fatullayev's shoes and coat sleeve. On July 6, 2010, a Baku court convicted him of illegal possession of narcotics for personal use. Fatullayev appealed the decision.

Since Fatullayev was in prison at the time of the July conviction, the lower court had no reason to issue any restraining measures, such as remand to custody. However, on November 5, the Court of Appeals sentenced Fatullayev to two months in pretrial custody while the conviction is under appeal, providing grounds for his continued detention. The Court of Appeals could have released him pending its hearing on the drug charges.

Human Rights Watch called on the Azerbaijan authorities to drop all charges against Fatullayev and free him immediately.

The Organization for Security and Co-operation in Europe's special representative on media and the Council of Europe's human rights commissioner both consider the drug charges highly improbable and have called for Fatullayev's unconditional release.

Fatullayev's continued detention is one high-profile case, but it is part of a series of attacks on freedom of expression in Azerbaijan. Last month, Human Rights Watch released the report "Beaten, Blacklisted, and Behind Bars: The Vanishing Space for Freedom of Expression in Azerbaijan," documenting the government's efforts to limit freedom of expression in Azerbaijan.

"The authorities are maneuvering to make it look like they have complied with the European Court's judgment, but no one is fooled," Gogia said. "It's clear that they are continuing to silence a journalist who has already served more than two years on a wrongful conviction." 

Background

Fatullayev is the founder and was editor-in-chief of two of the largest and most popular newspapers in the country - Gundelik Azerbaijan, or Azerbaijan Daily, and Realny Azerbaijan, or Real Azerbaijan. The original civil and criminal charges against him stem from a newspaper article and internet posting about the 1992 Khojali massacre, during the war between Azerbaijan and Armenia over the disputed territory of Nagorno-Karabakh. The article questioned the version of the Khojali events most commonly accepted in Azerbaijan.

On April 6, 2007, in a civil action brought by Tatyana Chaladze, head of the Center for Protection of Refugees and Displaced Persons, a Baku-based organization, Fatullayev was found guilty of insulting the honor and dignity of the victims of the Khojali massacre. The court ordered Fatullayev to publish a retraction and fined him 10,000 AZN (US$12,430).

In a separate criminal complaint brought by four survivors of the Khojali events and two former soldiers of Azerbaijani army, who were represented by Ms. Chaladze, on April 21, 2007, the same court found Fatullayev guilty of criminal defamation and slander. The court sentenced Fatullayev to two years and six months in prison.

In May 2007, the Ministry of National Security initiated a second criminal investigation against Fatullayev on the basis of another article. In July, the police charged Fatullayev with threatening terrorism and inciting ethnic hatred. In September, the authorities brought the tax evasion charges, allegedly for Fatullayev's failure to declare personal income he earned as a newspaper editor. In October, the Grave Crimes Court convicted Fatullayev on all counts and issued the sentence of eight years and six months.

As part of the investigation, the Ministry of National Security had confiscated the computer hard drives and sealed the offices of Gundelik Azerbaijan and Realny Azerbaijan in May 2007, leading to the closing of both publications.

Even before the 2007 case, Fatullayev had faced threats, attacks, and prosecution, apparently in retaliation for his writing. In July 2004, he was severely beaten on a street in Baku, apparently for an article criticizing the government. In August 2006, the interior minister, Rasul Usubov, brought three defamation claims against Fatullayev, and one month later a court convicted him, with a two year suspended sentence and a fine of more than US$10,000.

In October 2006, Fatullayev was forced to suspend publication of both newspapers briefly, after his father was kidnapped. The kidnappers threatened to kill him and his father if Fatullayev continued to publish. Fatullayev resumed publication shortly after his father's release, but the kidnappers were never apprehended.

Fatullayev appealed to the European Court of Human Rights in September 2007. In the October 4, 2010 judgment, the court found that Azerbaijan had violated article 10 of the European Convention on Human Rights guaranteeing freedom of expression and article 6 paragraphs 1 and 2, guaranteeing the right to a fair trial, including the presumption of innocence. The court called upon the authorities to release Fatullayev immediately.  

The Azerbaijani authorities brought the drug charges after the European Court heard oral arguments in the case but before its judgment.  

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