Protecting Critics: The European Court of Human Rights Strengthens its Stance Against Azerbaijan in Aliyev v. Azerbaijan

By Dr Marco Antonio Simonelli, PhD, University of Siena, and Alast Najafi, LLM candidate, University of Leiden

Introduction

The European Court of Human Rights (ECHR) used Article 18 of the European Convention on Human Rights (ECHR), a rarely utilized provision, to condemn Azerbaijan for human rights violations in the case of Aliyev v. Azerbaijan. This judgment is significant for several reasons: it marks the third time this year the Court found Azerbaijan in violation of Article 18, it’s the first time Article 18 has been used in conjunction with Article 8 (right to private and family life) in such a case, and it offers a glimpse into the dire political situation in Azerbaijan. This piece examines the Aliyev judgment, focusing on the application of Article 18, the significance of the Court’s recommendations under Article 46, and the role the ECHR can play in safeguarding democratic principles.

The Case of Aliyev v. Azerbaijan

This case, similar to Rasul Jafarov v. Azerbaijan, involves legal action taken against a human rights activist and NGO leader. Accused of financial crimes, the applicant was detained, and his property was searched. New charges followed, leading to a suspended sentence and his release in 2016. The ECHR determined that the applicant’s detention and the searches were intended to silence and punish him for his human rights work, constituting a violation of Article 18 in conjunction with Articles 5(1)(c) (pre-trial detention) and 8(2) ECHR.

The “Predominant Purpose” Test and its Application

Article 18 ECHR prevents states from using limitations on human rights for reasons beyond their intended purpose. After a period of limited use, Article 18 has seen a resurgence since 2004. The 2017 Grand Chamber ruling in Merabishvili v. Georgia established the “predominant purpose” test, which states that for a violation of Article 18 to occur, the permissible reason for restricting a right must be a cover for an actual, illegitimate purpose. This test has faced criticism for its vagueness, but the Court upheld it in Aliyev.

In Aliyev, the ECHR dismissed the Azerbaijani government’s arguments and confirmed that states are no longer presumed to be acting in good faith. The Court found the charges against the applicant to be baseless and, after a stark assessment of Azerbaijan’s political climate – including its suppression of NGOs and persecution of activists – concluded that Article 18 had been violated.

The Court’s reasoning in Aliyev suggests a potential shift in the application of the “predominant purpose” test. Unlike in Merabishvili, where the applicant’s evidence of political motivation was considered insignificant, in Aliyev, the political context played a key role in the Court’s decision. This new approach aligns with the perspective offered in a dissenting opinion in Merabishvili that blatant misuse of state power for political ends should be considered a violation of Article 18.

Recommendations Under Article 46: A New Form of Supervision?

Beyond the violation itself, the Court utilized Article 46 ECHR, which addresses the implementation of judgments. Citing a “troubling pattern” of arbitrary arrests and “misuse of criminal law,” the Court found the situation in Azerbaijan indicative of a systemic disregard for the rule of law.

The Court chose to provide general measures for Azerbaijan to implement, focusing on ending politically motivated prosecutions. While not issuing a formal pilot judgment, which would outline specific steps, the Court’s recommendations are strongly worded and cannot be easily dismissed.

The lack of concrete measures in the operative part of the judgment suggests that these “recommendations” may be directed more at the Committee of Ministers, responsible for overseeing judgment implementation under Article 46, rather than solely at the Azerbaijani government. This interpretation is supported by the fact that Article 46(2) tasks the Committee of Ministers with supervisory responsibility and that the detailed instructions could be an attempt by the Court to avoid further involvement in enforcing its own judgments, a politically charged issue.

This practice of issuing general recommendations under Article 46, observed in cases concerning states like Hungary, Poland, and Russia, suggests a strategic approach by the Court to address rule of law backsliding. This approach allows the Court to exert influence without directly confronting non-compliant states, preserving the delicate balance within the Council of Europe.

Conclusion

While only time will tell if Aliyev signals a true shift in the application of Article 18, it undeniably highlights this provision’s importance as a tool for safeguarding democratic principles. The Court’s proactive stance in recommending measures under Article 46 further strengthens its position against states that undermine the rule of law and target individuals for their beliefs.

The Aliyev judgment, alongside similar cases, showcases the potential role of the European Court of Human Rights in addressing the growing concern of rule of law backsliding, a phenomenon also challenging the European Union. By taking a firm stance against such practices, the Court actively works to protect human rights and uphold the values of a democratic society.