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Sleight of hand: How to make a journalist disappear – Afgan Mukhtarli’s case

Article by Mariam Uberi & G. Khoo

April 10, 2018

Sleight of hand: How to make a journalist disappear – Afgan Mukhtarli’s case

Azerbaijani investigative journalist Afgan Mukhtarli lived in self-imposed exile in Georgia from 2015-2017, but in May 2017 he was allegedly abducted in Tbilisi and forcibly transferred to a  detention center in Azerbaijan. During his abduction, he was allegedly ill-treated and later sentenced to six years imprisonment by the Balakan District Court in Azerbaijan on trumped-up charges.

This paper analyses the procedural violations Mr Mukhtarli experienced both in Georgia and in Azerbaijan after his detention and subsequent imprisonment. It will also review the political implications for both countries following the incident and examines human right breaches against the Mr Mukhtarli perpetrated by both countries.

Procedural Violations related to Mukhtarli’s abduction

On 29 May 2017, Mr Mukhtarli was abducted by unidentified Georgian men some wearing police uniforms and forced into a car where his captors beat him.[1] The journalist later told his lawyer that he was forced to change cars twice and in the second car his captors spoke Azerbaijani.[2] After crossing the border into Azerbaijan, Mr Mukhtarli was accused by the Azerbaijani authorities of illegally crossing the border, smuggling EUR 10,000 and assaulting a police officer.[3]

During his detention, Mr Mukhtarli was denied any medical examination to attend to his bruises and diabetes that he was diagnosed with before his apprehension. He also had restricted access to his lawyer.[4] In January 2018, Mr Mukhtarli was sentenced to prison but many commentators observed that at his trial judge had unfairly and systematically dismissed all favourable evidence. This included the examination of the fingerprints on the allegedly smuggled banknotes and the footage from the official border crossing point where the journalist was brought.[5]Mr Mukhtarli appealed against the judgment and on four occasions the Appeal Court postponed his appeal hearings.[6]The explanation given for the latest adjournment was that the State Prosecutor was not available to attend the appeal hearing.[7]

Meanwhile, the Georgian Ministry of Interior opened an investigation into the unlawful deprivation of liberty of Mr Mukhtarli under Article 143 (1) of the Criminal Code of Georgia. However, the charges do not cover the aggravating circumstances including ‘‘premeditated illegal deprivation of liberty by transferring the victim abroad by an organised group.’’ [8] Moreover, Mr Mukhtarli was not granted a ‘victim status’,[9]this, however, has not impeded his Georgian lawyers from accessing files related to Mr Mukhtarli’s case.[10]The Public Defender’s Office maintained that the CCTV recording on the day Mr Mukhtarli was abducted was completely altered as the time and weather conditions appeared altogether different.Nevertheless, the Georgian Prosecutors’ Office argued that the video recordings were authentic and that there were no grounds to undertake further forensic examination.[11]

Not one of the 200 questioned witnesses provided any information about the incident. Georgian authorities failed to identify the car that Mr Mukhtarli was transported in or trace its trajectory near the Georgian-Azerbaijani border. As an indication of the lack of independence of the investigation, the investigation was first opened by the Ministry of Interior and subsequently transferred to the prosecutor’s office after an unexplained two -month delay.[12]

Political responses

The Prime Minister of Georgia, dubbed the disappearance to be a serious challenge to Georgian sovereignty.[13]At first, the Georgian authorities denied any involvement in the abduction of Mr Mukhtarli.[14]A member of the Azerbaijani government said that the abduction of Mr Mukhtarli was a result of a successful joint operation between Georgian and Azerbaijani forces. The State Security Service of Georgia, however, rejected any links to the abduction.[15]Meanwhile, the President of Georgia called on the authorities to effectively investigate the case.[16]

Georgia and Azerbaijan received international condemnation for the illegal abduction and imprisonment of the journalists.[17]The European Parliament (EP) reminded Georgia of its responsibility to ‘‘provide protection to all those third country nationals living in Georgia’’ or grant ‘’political asylum’’ to safeguard those who face persecution back home for their human rights activities.[18]Separately, the Georgian authorities were urged to conduct an effective investigation into Mr Mukhtarli’s disappearance[19] and bring the perpetrators to justice.[20]Mr Mukhtarli’s imprisonment was widely perceived as an attack against ‘’free Media’’ in Azerbaijan[21]as authorities were urged to drop charges against him.[22]Baku, however, hit back at the accusations that the trial was politicised. Advisors close to President Aliyev argued that Mr Mukhtarli should not escape unpunished even if this meant curtailing his fundamental freedoms.[23]

In December 2017, amid international pressure, the Georgian Prime Minister admitted that Mr Mukhtarli’s disappearance from Georgia was a ‘‘serious failure and it should not have happened.’[24] He also claimed that the firing of the chiefs of border police and counterintelligence to be an ‘‘adequate response.’’[25] Later, the Head of the Human Rights Committee at the Georgian Parliament maintained that Georgian law enforcement was ready to question Mr Mukhtarli but the Azerbaijani authorities would not permit it.[26]Yet ten months following his abduction, local civil society organisations are still calling for the Parliament to establish a Parliamentary Investigative Committee to investigate the incident.[27] At the time of the writing, no investigation had been started.

Judicial safeguards

Both Georgia and Azerbaijan are members of the Eastern Partnership agreement (EaP) which aims to deepen and strengthen relations between EU and its member states. One of the priorities for its member states is to enhance respect for rule of law and develop justice sector through the strengthened institution and good governance.[28]Moreover, through  European Neighbourhood Instrument (ENI), EU geared most efforts towards criminal justice and human rights for Georgia[29] and Azerbaijan.[30]

Other than that, both countries have ratified the European Convention of Human Right (ECHR) and the UN Convention against Torture (CAT). Georgia therefore faces a responsibility for the journalist’s disappearance either through the direct involvement of State agents or through a failure to fulfil its obligation to protect him against the risk of the disappearance.[31] It should conduct a ‘‘thorough and effective investigation into his disappearance’’ and determine a ‘‘plausible explanation on injuries’’ occurred whilst in the custody by Georgian authorities.[32]

Georgia had an obligation to examine whether based on ‘‘political affiliation and activities’’ Mr Mukhtarli might have been subjected to torture upon his return to Azerbaijan. Moreover in light of the consistent reports of intimidation and conviction of independent journalists in Azerbaijan,[33]Georgia should have taken into consideration a ‘’likelihood of the danger of torture’’ for Mr Mukhtarli.[34]

Leniency towards the classification of the criminal act allegedly perpetrated by the criminal police “risks to undermine remedial effect’’ of the ECHR and undermines adequate degree of ‘‘public scrutiny’’ of his case.[35]

Azerbaijan too has largely failed to provide Mr Mukhtarli with legal safeguards ranging from the legality of his arrest to correct court procedure. These guarantees would entail the right to a lawyer from the outset of a person’s deprivation of liberty’[36]and equality of arms during his trial,[37] as well as access to an independent medical examination.[38]The delay of the Appeal Court to reach the final verdict, according to the journalist is to impede him from including his name into the pardoning decree expected to be issued by the President of Azerbaijan in May 2018.[39]The prosecutor has not used the provision of the Azerbaijan Criminal Code to summon the victim by force, in case he fails to appear before the court. Azerbaijan’s deliberate actions to curtail ‘‘reasonable time’’ largely constitutes to the ‘‘aggravating circumstances of the violation of right to fair trial Article 6 (1)’’.[40]

On 3 June 2017 Mr Mukhtarli’ lawyers filed a request for interim measures to the European Court of Human Rights (ECtHR) to release him from pre-trial detention on the grounds of ill health, which was refused by the ECtHR.[41]The Court highlighted that Azerbaijan authorities should provide Mr Mukhtarli with requisite medical assistance and prioritised the case. In June 2017 Mr Muktarli’s lawyers lodged a complaint before the ECtHR contesting a range of violations against Georgia and Azerbaijan varying from violation of fair trial, freedom of expression and limitation on the use of restrictions on rights taken in conjunction with unlawful deprivation of liberty.[42]

These breaches, including ‘‘dubiously motivated criminal prosecutions and disproportionate sentences in relation to journalists’’[43] have been constantly highlighted by the Council of Europe (CoE). Azerbaijan was also called to establish a judicial system to comply with the requirement of the right to fair trial of the ECHR.[44] Moreover, the ECtHR considered a number of cases from Azerbaijan on the detention of journalists and members of the opposition punished by the authorities for their dissenting voices. The Court’s jurisprudence pointed out a pattern of unlawful deprivation of liberty including the interference with their freedom of expression and political participation.[45]In the Mammadov case, Azerbaijan refused to abide to the ECtHR judgment all together to release a politician detained based on flawed criminal procedures.[46]The ECtHR, therefore in a rare move launched an inquiry into whether Azerbaijan had failed to comply with its obligations under the Convention. [47]

Enforced disappearance versus enabling environment for human right defenders

Georgia has co-sponsored UN resolution on human rights defenders where it condemned the ‘‘practice of enforced disappearance’’ used against human rights defenders[48]. Moreover, by supporting another UN Human Rights Council resolution on the safety of journalists in 2016, Georgia took a commitment to take action to Protect, Prosecute and Combat impunity against journalists. These commitments are rooted in its international human rights law obligations.[49] It is bound to ensure through policy and law an ‘‘enabling environment’’ for journalists to carry out their work independently. Through prosecution, it must respond to any violence and hold those responsible ‘‘accountable.’’[50]Combating impunity against journalists requires investigations undertaken by special investigative units.[51]These obligations are further echoed in the ECHR jurisprudence where countries should not only refrain from interference with individuals’ freedom of expression but also have a positive obligation to safeguard freedom of expression against the threat of attack, including from ‘‘private individuals’’, by introducing the effective system of protection.[52]

Through these remits, Azerbaijan is also bound to safeguard freedom of expression and provide enabling the environment for journalists. Azerbaijan, however, has been criticised for curtailing judicial freedoms and enhancing its susceptibility to political pressure. It was in relation to this that the UN Committee Against Torture stated that it “remains concerned at the lack of independence of the judiciary vis-à-vis the executive branch.”[53]As a follow-up procedure, Azerbaijan has an obligation to report on measures it has taken to eradicate arbitrary imprisonment, torture of human rights defenders and develop fundamental legal safeguards. [54]

Conclusion

Mr Mukhtarli’s case provides an important illustration of the shortcomings existing in the area of freedom of expression and the functioning judiciary in Azerbaijan. It also highlights the ill practice of using criminal law to punish dissenting voices and the role of the judiciary that leads to arbitrary arrest and detention. It is also followed that Azerbaijan must immediately free Mr Mukhtarli from the imprisonment.

Azerbaijani activists see the EaP as a missed opportunity for the EU to empower civil society and democratic institutions in Azerbaijan.[55] Some civil society actors think the EU should try harder to persuade the Government of Azerbaijan to get activists released. Azerbaijani members of the EaP’s Civil Society Forum Steering Committee have beseeched the EU to desist from signing the new EU-Azerbaijan agreement until Mr Mukhtarli and other political prisoners are released.[56]

The Georgian context underlines the State’s failure to safeguard a journalist from enforced disappearance and other procedural guarantees. It also shows Georgia falling short on its deliverables through the EaP agreement including ‘‘impartiality and effectiveness of law enforcement bodies’’ as part of the legal reform.[57]

The Georgian authorities should launch an effective investigation into the case to punish those who forcibly removed Mr Mukhtarli from Georgia.  It also has to provide Mr Mukhtarli and his family with appropriate remedies including compensation or socio-economic support.[58]

On a general level, both Azerbaijan and  Georgia should reinvigorate its efforts to implement the international human rights framework with robust guarantees for the safety of the journalists.

[1]Human Rights Watch. Azerbaijan Should Free Abducted Journalist.Afgan Mukhtarli Had Sought Safety in Georgia.https://bit.ly/2EXwlkl. June 2017.

[2] Ibid.

[3] Afgan Mukhtarli was charged under Article 318.1 (illegal border crossing) and Article 206.1 (smuggling) and Article 315.2 ( violence against police authority) of the Criminal Code of Azerbaijan.

[4] Mr Mukhtarli’s lawyers were present at his initial hearing, however, it was not until 7 June 2017, that he was allowed an audience with his lawyer without supervision. Freedom Now. Report: Repression Beyond Borders: Exiled Azerbaijanis in Georgiahttps://bit.ly/2DTSRsY. September 2017. p.15.

[5] Jamanews. The Trial of Afgan Mukhtarli commences in Azerbaijan. https://bit.ly/2GqWThR. December 2017.

[6]The hearing was postponed  three times since  a police officer allegedly beaten by Mr Mukhtarli did not attend the trial. Article 42.Monitoring of Mr Mukhtarlis’ trail in Azerbaijan. available in Georgian. https://bit.ly/2JmHRbC. 14 March 2018.

[7] Facebook status of Elchin Sadigov, Mukhtarli’s lawyer. Available in Azerbaijani https://bit.ly/2q3w4Hd. 2 April 2018

[8]Public Defender’s office: Public Defender of Georgia Appeals to Chief Prosecutor of Georgia concerning Mukhtarli Mukhtarli case. http://bit.ly/2F6UQyV. July 2017.

[9] Ibid.

[10] By the Georgian Criminal law if person is not granted a victim status he/she does not have access to case files. Email correspondence with the Head of Article 42, Natia Katsitadze. 29 March 2018.

[11] Public Defender’s office: Public Defender Echoes Investigation into Mukhtarli Mukhtarli Casehttp://bit.ly/2F6UQyV. November 2017.

[12] Public Defender’s Office: General Prosecutor’s office in Georgia considered the recommendation of the Defenders’ office partially.http://bit.ly/2F0Del5. July 2017.

[13] Statement by the Prime-Minister  Giorgi Kvirikashvili, 3 June 2017 in Freedom now. p. 15.

[14] Civil. ge.Georgian Officials on Azerbaijani Journalist’s Alleged Abduction. https://bit.ly/2DTSRsY. June  2017.

[15] Statement of the Security Service of Georgia.http://bit.ly/2EU4a5D. December  2017.

[16]Tabula, President Margvelashvili:Mukhtarli’s disappearance a challenge to our statehood. https://bit.ly/2DPA4iA May 2017.

[17] Article 19. Azerbaijan: Mukhtarli Mukhtarli abducted in Georgia and detained on smuggling and trespassing charges.http://bit.ly/2GJU2gq. June 2017.See also Pen International and other: Georgia/Azerbaijan: open letter on the cross-border abduction and detention of Mukhtarli Mukhtarlihttp://bit.ly/2CnxOmx. June 2018. Council of Europe Parliamentary Assembly: Rapporteur calls for release of Azerbaijani journalist Afqan Mukhtarli.http://bit.ly/2ETYSLS June  2017.

[18]Joint motion for Resolution.European Parliament on the case of Azerbaijani journalist  Afgan Mukhtarli. (2017/2722(RSP)).http://bit.ly/2F8kSBI. June 2017.

[19] Ibid.

[20] ibid.

[21]Amnesty International. Sentenced journalist latest victim of Azerbaijan’s ‘repressive apparatus of fear’. http://bit.ly/2FIjDJR. June 2017. See also CPJ:  Azerbaijani court sentences local journalist to six years in prison.https://bit.ly/2Gk2fIw. No date.

[22] Parliamentary Assembly. Resolution 2185. Azerbaijan’s Chairmanship of the Council of Europe: what follow-up on respect for human rights. http://bit.ly/2rIHJyf.

[23] News.az Ali Hasanov: OSCE Office on Freedom of Media shouldn’t show tendentious approach towards Azerbaijan, http://bit.ly/2IiAt0b.January 2018.

[24] Tabula.Prime Minister:Mukhtarli case was a big failure. http://bit.ly/2FxIGNj. December 2017.

[25] Ibid.

[26] Sophio Kiladze: “Investigation of the case of Afgan Mukhtarli is delayed due to the fact that Georgian law enforcers are not allowed to question himhttp://bit.ly/2sGUvhn  February 2018.

[27] Open Letter: Georgia/Azerbaijan: Abduction of journalist Mukhtarli Mukhtarlihttp://bit.ly/2F8kSBI, February 2018.

[28] Eastern Partnership.https://bit.ly/2taFO68.

[29] Programming of the European Neighbourhood Instrument (ENI) – 2014-2020. Single Support Framework for EU support to Georgia.https://bit.ly/2m70PKc. (2014-2017).p.8.

[30] Programming of the European Neighbourhood Instrument (ENI) – 2014-2020 Single Support Framework for EU support to Azerbaijan. https://bit.ly/2uYFxnT. (2014-2017).p.5.

[31] Kasymakhunov v. Russia/ (App no. 29604/12).14 November 2013,para 120.

[32] Ribitsch v. Austria. (App no 42/1994/489/57 ). 4 December 1995, para 32.

[33]Report of the Working Group on Arbitrary Detention on its mission to Azerbaijan.A/HRC/36/37/Add.1. 2017,para 85.

[34] Pauline Muzonzo Paku Kisoki v. Sweden. Communication No. 41/1996, U.N. Doc,paras 82. and 9.3.

[35]Enukidze and Girgvliani  v Georgia.(App. no. 25091/07). April 2011, paras 275 and 258.

[36] Salduz v Turkey. (App no. 36391/02).  November 2008 para 54.

[37] Foucher v France.(App. no. 22209/93). March 1997, para 34.

[38] Case of Kudla v. Poland. (App. no. 30210/96).26 October 2000,para 91.

[39]Before big holidays usually once or twice a year the President of Azerbaijan Ilham Aliyev pardons convicts by issuing a  pardoning decree. With that  public  expectations raise that political prisoners too will be pardoned. This year around it is expected the President to  issue a pardoning decree in May on the occasion of the 100 years of independence of the Republic of Azerbaijan. Email correspondence with Giorgi Gogia,South Caucasus Director, Human Rights Watch. 29 March 2018. See also, Human rights House and Article 21. Monitoring of Afgan Mukhtarli’s trial in Azerbaijan.https://bit.ly/2J2IoPL. 24 March 2018.

[40] Case of Bottazi v Italy. (App no. 34884/97).July 1999,para 22.

[41]Rule 39 of its Rules of Court- indicates interim measures to any State party to the ECHR. Interim measures are urgent measures which, apply only where there is an imminent risk of irreparable harm. Email correspondence with the lawyer of Afgan Mukhtarli, Archil Chopikashvili, Article 42. 23 March 2018.

[42] Ibid.

[43]Council of Europe, Parliamentary Assembly. Resolution 2062.The functioning of democratic institutions in Azerbaijan. 2015.http://bit.ly/2o64nOi, para 6.

[44] Council of Europe, Parliamentary Assembly. Resolution 2185 (2017). Azerbaijan’s Chairmanship of the Council of Europe: what follow-up on respect for human rights? http://bit.ly/2rIHJyf ,October 2017.

[45] Ilgar Mammadov v. Azerbaijan (Application No. 15172/13); Khadija Ismayilova v. Azerbaijan (Application No. 30778/15); Rasul Jafarov v. Azerbaijan (Application No. 69981/14); Ibrahimov and Others v. Azerbaijan. (Applications nos. 69234/11, 69252/11 and 69335/11); in UN Report of the Working Group on Arbitrary Detention on its mission to Azerbaijan. (2017).p.15.

[46]To this date, Mammadov, three years after the final ECtHR judgment, still remains in detention.

[47]In light of the ongoing failure for Azerbaijan to  implement the  judgement Ilgar Mammadov v Azerbaijan , Bureau of the Congress calls the authorities to implement it as soon as possible the Procedure foreseen under Article 46 of the Convention. Council of Europe: Azerbaijan: Congress supports the call from the Parliamentary Assembly in the case of Ilgar Mammadov http://bit.ly/2FNYXjB 20 October 2017.

[48] UN Resolution 34/5 by the Human Rights Council, with Georgia voting in favour, see Joint Open Letter: GEORGIA/AZERBAIJAN: Abduction of journalist Mukhtarli. http://bit.ly/2F8kSBI. March 2017.

[49] Article 19. Acting on UN Human Rights Council Resolution 33/2 on the Safety of Journalists. Prevent, Protect, Prosecute.https://bitly.is/1g3AhR6.  2017,p.7.

[50] Ibid.p.16.

[51] Ibid.p.20.

[52] Ibid.p.38.

[53] UN Committee Against Torture (CAT), Concluding observations:Azerbaijan, 27 January 2016, CAT/C/AZE/CO/4. https://bit.ly/2IVTPIT 2016.para 14.

[54] Ibid. para 39.

[55] The Eastern Partnership: the view from Azerbaijan  https://bit.ly/2GtKTZO May 2015.

[56] Email correspondence with Anar Mammadli, a member of the EaP’s CSF Steering Committee, 2 April 2018.

[57] Association Agreement between European Union and Georgia. https://bit.ly/2s8jTfm. 2014.p.8.

[58] Article 19. Acting on UN Human Rights Council Resolution 33/2. pp.25.

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