Natig Jafarov v. Azerbaijan (Application no. 64581/16)
A selection of key paragraphs can be found below the judgment.
63. However, the mere fact that the restriction of the applicant’s right to liberty did not pursue a purpose prescribed by Article 5 § 1 (c) is not in itself a sufficient basis to conduct a separate examination of a complaint under Article 18 unless the claim that a restriction has been applied for a purpose not prescribed by the Convention appears to be a fundamental aspect of the case (see Merabishvili, cited above, § 291). Therefore, it remains to be seen whether there is proof that the authorities’ actions were actually driven by an ulterior purpose.
64. In this connection, the Court points out that in the case of Aliyev (cited above, § 223) it found that its judgments in a series of similar cases reflected a pattern of arbitrary arrest and detention of government critics, civil society activists and human-rights defenders through retaliatory prosecutions and misuse of the criminal law in breach of Article 18.
65. For the reasons set out below the Court finds that the present case constitutes a part of this pattern since the combination of the relevant case-specific facts in the applicant’s case is similar to that in the previous ones, where proof of an ulterior purpose derived from a juxtaposition of the lack of suspicion with contextual factors.
66. Firstly, as regards the applicant’s status, the Court notes that it is not disputed between the parties that the applicant is a political activist and was actively involved in the campaign concerning the constitutional referendum of 26 September 2016.
67. Secondly, the applicant’s situation should be viewed against the backdrop of arrests of other notable civil society activists and human-rights defenders who have been detained and charged to a large extent with similar criminal offences in relation to the “alleged illegal activities of some non‑commercial organisations” (see paragraphs 9 and 13 cited above).
68. Thirdly, and still bearing in mind that there is nothing in the case file to show that the prosecuting authorities had any objective information giving rise to a reasonable suspicion against the applicant at the material time, the Court attaches particular weight to the timing of the institution of criminal proceedings against the applicant, his arrest and detention. The applicant was arrested during the active phase of the registration process for the referendum campaign in which he officially represented REAL, which campaigned against the draft amendments to the Constitution (compare Mammadli, cited above, § 102). He was released following the prosecutor’s request and only after REAL officially announced that it had decided to end its participation in the campaign because of the arrest of some of its members, including the applicant, and after the official launch of the referendum campaign. Thus, having regard to the chain of events in the case, the Court cannot accept the Government’s submission that the prosecuting authorities did not have any ulterior motives and that the applicant’s arrest and detention did not prevent him from participating in the campaign.
70. Thus, the totality of the above factors indicates that the actual ulterior purpose of the impugned measures was to punish the applicant for his active political engagement and to prevent him from participating as a representative of the opposition in the referendum campaign. In the light of these considerations, the Court finds that the restriction of the applicant’s liberty was imposed for purposes other than those prescribed by Article 5 § 1 (c) of the Convention.
71. There has accordingly been a violation of Article 18 of the Convention taken in conjunction with Article 5.