Observation (CEACR) - adopted 2017, published 107th ILC session (2018)

Abolition of Forced Labour Convention, 1957 (No. 105) - Azerbaijan (Ratification: 2000)

Article 1(a) of the Convention. Sanctions involving compulsory labour as a punishment for expressing political views or views ideologically opposed to the established political, social or economic system. In its previous comments, the Committee drew the attention of the Government to several provisions of the Criminal Code, enforceable with sanctions of correctional work or imprisonment, both involving compulsory labour in accordance with section 95 of the Code on the Execution of Sentences. These provisions are worded in terms broad enough to lend themselves to application as a means of punishment for the expression of views opposed to the established political, social or economic system. These provisions include:

• -section 147 regarding defamation, defined as “dissemination, in a public statement … or through the mass media, of false information discrediting the honour and dignity of a person”;
• -sections 169.1 and 233, read together with sections 7 and 8 of the Act on freedom of assembly, regarding “organization or participation in a prohibited public assembly” and “organization of group actions violating public order”; and
• -section 283.1 regarding “inflaming the national, racial or religious enmity”.

The Committee referred to two judgments handed down by the European Court of Human Rights (ECHR) in 2008 and 2010, which found that convictions based on section 147 of the Criminal Code constituted a breach of Article 10 of the European Convention on Human Rights, which protects freedom of expression. Moreover, the Committee noted that the Government adopted amendments in 2013 to widen the scope of section 147 of the Criminal Code, which introduce criminal liability for defamation committed “through a publicly displayed Internet information resource”, despite the Government’s commitment to decriminalizing defamation. The first criminal conviction on charges of defamation online was handed down on 14 August 2013. Furthermore, the ECHR handed down a judgment on 22 May 2014 concerning a case of imprisonment on charges of “organizing public disorder” (section 233 of the Criminal Code), subsequently replaced by the more serious charge of “mass disorder” (section 220.1 of the Code), of which the purpose, according to the ECHR, was to silence or punish an opposition politician (Ilgar Mammadov v. Azerbaijan, application No. 151172/13).

The Committee also noted that, as highlighted and condemned by an important number of United Nations and European institutions and bodies, a growing tendency had emerged in recent years to apply various provisions of the Criminal Code as a basis for the prosecution of journalists, bloggers, human rights defenders and others who express critical opinions, under questionable charges which appear politically motivated, resulting in long periods of corrective labour or imprisonment, both involving compulsory labour. In this regard, the Committee observed that the following provisions of the Criminal Code are often used for this purpose: insult (section 148); embezzlement (section 179.3.2); illegal business (section 192); tax evasion (section 213); hooliganism (section 221); state treason (section 274); and abuse of office (section 308). Noting all this information with deep concern, the Committee strongly urged the Government to take all necessary measures to ensure that no penalties involving compulsory labour may be imposed for the peaceful expression of political views opposed to the established system.

The Committee notes the Government’s indication in its report, regarding section 147 of the Criminal Code that, based on the opinion of the ECHR, the Supreme Court has presented a proposal to the Parliament so that defamation shall only be punishable by fines and that other forms of punishment shall be removed from the Criminal Code. The Government also indicates that, under section 233 of the Criminal Code, four people were convicted in 2014, ten in 2015 and four in 2016.

The Committee also notes that, according to the Report of the UN Special Rapporteur on the situation of human rights defenders on his mission to Azerbaijan of 20 February 2017, in November 2016 the National Assembly approved amendments to the Criminal Code proposed by the Prosecutor General, which introduce section 148(1) (posting slander or insult on an Internet information resource by using fake user names, profiles or accounts), punishable by imprisonment for up to one year, and the extension of section 323(1) (smearing or humiliating the honour and dignity of the President in public statements, publicly shown products or the mass media) to online activities through the use of fake user names, profiles or accounts, punishable by up to three years’ imprisonment (A/HRC/34/52/Add.3, paragraph 46). The UN Human Rights Committee (HRC) also expresses its concern in its concluding observations of November 2016 that the maximum term of imprisonment under the Code of Administrative Offences for misdemeanours, with which human rights defenders are often charged (for example, hooliganism, resisting police and traffic violations), has been increased from 15 to 90 days. It is now equal to the minimum term of detention under the Criminal Code, which may amount to de facto criminal sanction (CCPR/C/AZE/CO/4, paragraph 20). Moreover, the findings of the UN Working Group on Arbitrary Detention during its mission to Azerbaijan in May 2016 indicate that human rights defenders, journalists, political opponents and religious leaders who criticize the Government and its policies face limitations on their work and personal freedom. At least 70 such individuals were reportedly detained on charges that included drugs- and arms-related offences, hooliganism and tax evasion. Lawyers who assisted in bringing cases of human rights defenders to the ECHR had been detained on charges of tax evasion, illegal entrepreneurship and abuse of authority (A/HRC/36/37/Add.1, paragraph 80).

The Committee further notes that the ECHR has continued to hear a number of cases from Azerbaijan concerning the detentions and convictions of individuals expressing opinions not in line with those of the ruling political establishment, particularly in the following cases: Yagublu v. Azerbaijan, application No. 31703/13, judgment of 5 November 2015; Huseynli and others v. Azerbaijan, application Nos 67360/11, 67964/11 and 69379/11, judgment of 11 February 2016; and Rasul Jafarov v. Azerbaijan, application No. 69981/14, judgment of 12 March 2016, among others. However, the rulings of the ECHR, including the one concerning Mr Ilgar Mammadov handed down in 2014, are not executed by the Government. Moreover, in his third-party intervention in the cases heard by the ECHR, the Council of Europe Commissioner for Human Rights concludes that there is a clear pattern of repression in Azerbaijan against those expressing dissent or criticism of the authorities. It concerns human rights defenders, journalists, bloggers and other activists, who may face a variety of criminal charges which defy credibility. These criminal prosecutions also constitute reprisals against those who cooperate with international institutions (CommDH(2016)6, paragraph 46; CommDH(2016)42, paragraph 44).

Noting the absence of any improvement in the situation as described above, the Committee deplores the increasingly restrictive legislation, as well as the increased administrative charges and criminal prosecutions brought by authorities to suppress the peaceful expression of political or ideological views opposed to the established system, despite numerous calls for action by the United Nations and European institutions and bodies. The Committee once again draws the Government’s attention to the fact that legal guarantees of the rights to freedom of thought and expression, freedom of peaceful assembly, freedom of association, as well as freedom from arbitrary arrest, constitute an important safeguard against the imposition of forced or compulsory labour as a punishment for holding or expressing political or ideological views, or as a means of political coercion or education (see General Survey on the fundamental Conventions, 2012, paragraph 302). The Committee therefore strongly urges the Government to take immediate and effective measures to ensure that no penalties involving compulsory labour may be imposed for the peaceful expression of political views opposed to the established system, in both law and practice. In this regard, the Committee requests the Government to ensure that the abovementioned sections of the Criminal Code are amended, by clearly restricting the scope of these provisions to situations connected with the use of violence or incitement to violence, or by repealing sanctions involving compulsory labour. It also requests the Government to take the necessary measures to ensure that the application of the Criminal Code and the Code of Administrative Offences in practice does not lead to punishment involving compulsory labour in situations covered by Article 1(a) of the Convention. Lastly, the Committee requests the Government to provide information on any progress made in this respect.

The Committee is raising other matters in a request addressed directly to the Government.