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Learning Curves, Negligence and the Territorial Gains of
Autocracy: The Council of Europe Monitoring of Political
Imprisonment in Azerbaijan 2001-2015
JULIAN M. LEHMANN∗
1. Introduction
Few European countries have a record of political imprisonment as protracted and contested as
does the Southern Caucasus Republic of Azerbaijan. According to the Cingranelli-Richards (CIRI)
Human Rights Dataset, which is based on country reports from Amnesty International, Azerbaijan
has consistently detained more than 50 individual political prisoners since 1992. The only years
when Azerbaijan received ratings indicating less than 50 detentions were 1991, (the
independence year of the country), 1999, and 2000. 1
Allegations of political imprisonment continue beyond 2011, the final year of the dataset’s
observation period. Local Azerbaijani and international human rights organizations continuously
compile lists of presumed political prisoners or raise attention to individual cases of high profile
prisoners up to present day in June 2016.2 Allegations of political imprisonment gave rise to a
multi-year multilateral monitoring process at the Council of Europe (CoE), Europe’s biggest
regional organization.
While the Azerbaijani government steadily rebutted allegations of political imprisonment,
many of the alleged political prisoners were released before the end of their respective prison
terms. Others, however, were not. Focusing on the monitoring process at the Council of Europe,
this paper examines whether the appeals of outside state and non-state actors for political
prisoners in Azerbaijan led to early releases, and if so, why the appeals had an effect in some cases
and not in others.
To achieve this, the paper first provides an overview of different phases of political
imprisonment in Azerbaijan (section 2). It then analyses the monitoring process at the Council of
Europe, which institutionalized a monitoring procedure in the year 2001 and maintains it – albeit
in different form – to this date (section 3). Finally, it complements that analysis with a selection of
three cases of individuals whose imprisonment sparked international protest (if varying in form,
intensity, and in the kind of actors voicing criticism). The cases differ one from another in respect
of their release from prison. To investigate the reasons behind early releases (or their absence) in
both parts of analysis, the paper relies on desk research of publicly available information, as well
as on ten interviews and consultations, some of them non-attributable, with diplomats, lawyers,
∗ Project Manager, Global Public Policy Institute, Berlin, Germany. The author is grateful to comments by Aizhan
Shorman and gratefully acknowledges the German Volkswagen Foundation, which funded the research for this paper.
1 The CIRI Human Rights Dataset, David L. Cingranelli, David L. Richards, and K. Chad Clay, Dataset Version 2014.04.14
at http://www.humanrightsdata.com/, accessed 29 June 2016.
2 For lists compiled by the human rights organizations, see E.g. Human Rights Club, a Baku-based NGO,
http://civicsolidarity.org/article/800/azerbaijan-updated-list-political-prisoners and the Norwegian Helsinki
Committee , http://www.nhc.no/no/Updated+list+of+political+prisoners+in+Azerbaijan.b7C_wlrMX3.ips, accessed
29 June 2016. See also annex for an overview of lists of political prisoners.
For an example of a report raising attention to individual cases, see Amnesty International USA et al, Joint Statement:
Azerbaijan: Quash conviction of journalist Khadija Ismayilova, http://www.freedom-now.org/wpcontent/uploads/2016/05/DC-FreeKhadija-rally-joint-statement.pdf
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and activists conducted in Germany, over the phone or in person, between April 2014 and
November 2015.
The timeframe for the analysis is 2001 to 2015, corresponding with the beginning of the
monitoring process at the Council of Europe. The 2006-2015 period was also marked by relatively
stable political (if unstable economic) conditions. Azerbaijan’s post-Soviet transition period was
over; President Heydar Aliyev and then his son Ilham Aliyev consolidated their political power.
Economically, Azerbaijan went through alternating phases of upswings and downswings, closely
related to the global oil price. As of 2005, a boom followed a period of stagnationand lasted until
the European sovereign debt crisis. Spurred by the ongoing collapse of the oil crisis since 2014,
the economy is in downswing again.
2. Political Imprisonment in Post-Soviet Azerbaijan: Landmarks of
Detention
Historically, allegations of political imprisonment in Azerbaijan are set against a background of
democratic transition and regime consolidation since independence in 1991. Political instability,
spurred in particular by the escalation of the Nagorno-Karabakh conflict between Armenia and
Azerbaijan into a full-fledged war, marked the immediate aftermath of independence. The armed
conflict in Karabakh triggered a coup attempt against the second elected president since
independence, the communist Abulfaz Elchibey. Elchibey averted the coup with the help of Heydar
Aliyev, former President of Azerbaijan, member of Soviet Union Politburo, andfirst secretary of
the Communist Party of Azerbaijan. Aliyev, however, quickly ousted Elchibey with a plebiscite and
secured victory in the subsequent fraudulent presidential elections of 1993. He reestablished the
crumbling central state authority with a patronage system of old political elites and militia leaders
that relied strongly on distributing oil revenues.3 Since then, Heydar Aliyev and his son Ilham, who
succeeded his father as president after Heydar Aliyev’s death in 2003, formed and kept a firm grip
on political and economic power. Political science scholar Thomas Carothers conceptualized the
Aliyev regimes as a hybrid, situated in the grey zone between full-fledged authoritarian and
democratic states.4 As indicators for this determination, scholars referred to the fairness of
elections, the diversity and activity of the political opposition, and press freedom. Political science
scholar Farid Guliyev pointed to the importance of loyalty to a personal ruler, based on a mix of
rewards and fear combined with authoritarian characteristics such as restrictions towards civil
society or limits on the transfer of political power, and thus qualified the Aliyev regimes as
“sultanistic semiauthoritarianism”.5
In whichever way one chooses to refer to Aliyev regimes, whether sultanistic or authoritarian,
both Aliyevs detained political prisoners, albeit varying in scale and in the populations of political
prisoners. Indeed, several phases of power transition, consolidation and challenge since 1993
come with a distinct population of alleged political prisoners. Generally, the more “historic” groupbased political imprisonment linked to post-independence gave way to the imprisonment of
individual opposition activists.
Jonathan Wheatley and Christoph Zürcher, “On the Origin and Consolidation of Hybrid Regimes: The State of
Democracy in the Caucasus”, 4:1 Taiwan Journal of Democracy (2008), p. 19
4 On matters of conceptualization, see Thomas Carothers, “The End of the Transition Paradigm,”
Journal of Democracy 13, no. 1 (January 2002), 5–21. Specifically on Azerbaijan, see Svante Cornell, “Democratization
Falters in Azerbaijan” 12:2 Journal of Democracy (2001) 118-131.
5 Farid Guliyev, Post-Soviet Azerbaijan: Transition to Sultanistic Semiauthoritarianism? An Attempt at
Conceptualization, Demokratizatsiya: The Journal of Post-Soviet Democratization, Vol. 13, No. 3, pp. 393-435.
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2.1. Waves of Political Imprisonment under Heydar Aliyev (1991-2003): Postindependence Volatility; Election Protests 2000
Detention Phase 1: “Historic” Power Consolidation
The first wave of political imprisonment took place in the two years of independence, when
Heydar Aliyev’s primary goal was to reestablish a monopoly of power and acquire political
stability. At that time, authorities detained primarily larger groups detention accused of
attempting a coup d’etat. The government in 1993 and1994 imprisoned several high-profile
individuals, who controlled armed groups and made a point of challenging the government. Two
such high-profile individuals are Alikram Gumbatov, a minority group leader, and Raqim Gaziyev,
former defense minister. In addition, more than 60 supporters of the opposition party Popular
Front of Azerbaijan (AXCP) were arrested due to allegations of staging coups.
In October 1994, over 130 supporters of Prime Minister Suret Huseynov were arrested after
an attempted coup d’état under Huseynov’s leadership. In March 1995, forces under control of
Aliyev struck down another attempted coup d’état by the special policy brigade OMON under
control of the Deputy Minister of the Interior in Azerbaijan Rovshan Javadov. Finally, following
the failed coup, government authorities arrested over 700 people linked to OMON, of whom over
370 were imprisoned.6
Detention Phase 2: Securing Electoral Victory
The next wave of political imprisonment unfolded in 2000, allegedly with the goal to harass the
opposition before the November parliamentary elections.7 According to claims by opposition
parties, police detained, for periods of multiple hours to days, approximately 1500 opposition
members throughout the year 2000 and later released them without charges.8 Several opposition
members were detained for alleged complicity in the politically motivated hijacking of a plane, but
later released without charges.9 After the elections, reports of large-scale irregularities sparked
violent protests of opposition parties. More than 700 individuals were arrested for participating
Danish Immigration Service, Report on fact-finding mission to Azerbaijan: Former OPON forces in Azerbaijan, etc.
(27 January to 1 February 2002), 11 November 2002, available at: http://www.refworld.org/docid/3df0f93e4.html
[accessed 11 July 2016]. Although a large number, it is not representative of political imprisonment, as some of those
arrested them had committed crimes unrelated to the attempted coup, as OMON had turned into a criminal group
involved, among others, in smuggling,. See Svante E. Cornell, Azerbaijan Since Independence, M.E. Sharpe (2011), p.
86.
7 Sporadic cases of alleged political imprisonment continued before 2000. A notable example is the detention of
nephews of exiled opposition politician Rasul Guliyev, in 1999 and 2000, Country Reports on Human Rights
PracticesBureau of Democracy, Human Rights, and Labor2001March 4, 2002
8 Country Reports on Human Rights Practices Bureau of Democracy, Human Rights, and Labor 2000
February 23, 2001; Country Reports on Human Rights Practices Bureau of Democracy, Human Rights, and Labor,
2003, February 25, 2004
9 Country Reports on Human Rights Practices Bureau of Democracy, Human Rights, and Labor
2000 February 23, 2001
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in those arrests, 120 of them were held for the time of a 3-month investigation.10 At least nineteen
received sentences between four and six years.11
2.2. Political Imprisonment under Ilham Aliyev (2003-2015): Succession of a
Human Rights Crisis, Power Consolidation, Arab Spring Protests and a
2013 Crackdown
Detention Phase 3: “Historic” Power Consolidation Reloaded
A third wave of political imprisonment neatly connects to the character of previous arrests; again,
authorities were keen to secure electoral victory and prevent mass protests. Although the running
up to the October 2003 election saw less short-term imprisonment of opposition members than
before the 2000 parliamentary elections,12 the crackdown on the opposition after the election,
including detentions, was even more serious than it had been in 2000.
For reasons of poor health, Heydar Aliyev had withdrawn his candidacy weeks before the
presidential elections and endorsed his son Ilham, who had been preparing for the succession.
According to official figures, Ilham Aliyev secured 76 percent of the October vote, in a ballot with
numerous irregularities.13 The opposition immediately contested the results and rallied in mass
demonstrations. Violent clashes broke out as the police wanted to prevent the unsanctioned
marches, leaving four dead and many people injured on both sides. In the course of the
demonstrations, police arrested more than 700 opposition members, of whom 124 were
convicted and 41 received prison terms.14 Among those detained, there were four national and
four local leaders of different opposition parties. Peter Bouckaert, the emergencies researcher at
the time at Human Rights Watch said, "Azerbaijan is going through its most serious human rights
crisis of the past decade."15
Regarding political imprisonment, that human rights crisis would last beyond the arrests
following the post-election violence. In October 2004, the Court of Grave Crimes in Baku charged
seven opposition leaders with organizing mass disturbances and resisting or committing violence
against state representatives (“the trial of seven“). The leaders received prison terms between
two and a half and five years.16 In 2005, the year of parliamentary elections, there were frequent
arrests and short-term detentions of opposition party members, who sought to hold political
10 Country Reports on Human Rights Practices Bureau of Democracy, Human Rights, and Labor
2003 February 25, 2004
11 Danish Immigration Service, Report on fact-finding mission to Azerbaijan: Former OPON forces in Azerbaijan, etc.
(27 January to 1 February 2002), 11 November 2002, available at: http://www.refworld.org/docid/3df0f93e4.html
[accessed 11 July 2016]
12 Human Rights Watch did report the short-term incommunicado detention of opposition leaders in 2003, however,
see Human Rights Watch Briefing Paper, “Arbitrary Arrests of Opposition Members” (2003), accessed July 2016,
https://www.hrw.org/legacy/backgrounder/eca/azerbaijan/5.htm. Another main episode of political imprisonment
occurred was the conviction of 15 individuals for fomenting arrest in Naradan, four of whom received prison
sentences, see Freedom House, “Azerbaijan”, 2004, accessed July 2016, https://freedomhouse.org/report/freedomworld/2004/azerbaijan
13 OSCE/ODIHR Election Observation Mission Report, “Republic of Azerbaijan, Presidential Election 15 October 2003”,
(2003), accessed July 2016, http://www.osce.org/odihr/elections/azerbaijan/13467?download=true
14 U.S. Department of State, “Azerbaijan” (2005), accessed July 2016,
http://www.state.gov/j/drl/rls/hrrpt/2004/41670.htm
15 Human Rights Watch, “Azerbaijan: Government Launches Crackdown” (2003), accessed July 2016,
https://www.hrw.org/news/2003/10/21/azerbaijan-government-launches-crackdown
16 Human Rights Watch, “Azerbaijan: Opposition Leaders Sentenced After Flawed Trial” (2004), accessed July 2016,
https://www.hrw.org/news/2004/10/25/azerbaijan-opposition-leaders-sentenced-after-flawed-trial
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rallies.17 The US State Department also reported the detention of four opposition party members
and youth activists on allegedly fabricated charge and the arrest and detention of more than a
dozen of high profile political figures, including current and former ministers, on charges of
staging a coup.18 Yet, 2005 also saw a somewhat different reaction to the widespread
irregularities19 observed in the parliamentary elections than previously, with several
functionaries being sacked and later arrested for electoral fraud.20
Detention Phase 4: Towards Imprisonment of Individual Activists
As of 2005, the number of new cases of political imprisonment decreased and changed character.
In particular, imprisonment moved away from mass detention following unsanctioned rallies,
towards that of individual journalists, political and religious activists or conscientious objectors.
The charges appear to be fabricated on grounds such as “defamation of the Azerbaijani people",
treason against the state, tax evasion, “hooliganism”, drug possession, or inflicting minor bodily
harm.21
Coinciding with an unprecedented economic boom between 2006 and 2009, annual GDP
growth rates of up to 30 percent, Azerbaijan experienced a period of Western integration and
political calmness in which the government’s main concern was the spending of the oil windfall.
Even at the presidential elections of 2008, there were no large protests since most opposition
leaders did not see a chance of winning and thus refused to stand as candidates. International
observers again noted irregularities and the organization of the elections. The record of media
freedom remained poor at best, opposition harassment and short-term detention of opposition
activists remained, and there were still alleged political prisoners in jail. In particular, Azerbaijani
authorities had arrested three critical journalists,22 a US embassy cable noted “a new trend of
using non-libel charges to exert pressure on journalists.”23
A new larger scale crackdown on opposition activists started alongside the protests youth
groups organized in Baku in spring 2011, reportedly inspired by the “Arab spring” events.
In March 2011, police arrested five youth activists from opposition parties or independent
youth organizations; they were all active social media users and expressed criticism of the
government and support for protesting.24 According to Human Rights Watch, they faced “a range
of fabricated criminal and administrative charges.”25 The same pattern repeated itself with 10
U.S. Department of State, “Azerbaijan” (2006), accessed July 2016,
http://www.state.gov/j/drl/rls/hrrpt/2005/61637.htm
18 Ibid.
19 OSCE/ODIHR Election Observation Mission Final Report, “Republic of Azerbaijan, Parliamentary Elections 6
November 2005”(2006), accessed July 2016,
http://www.osce.org/odihr/elections/azerbaijan/17946?download=true
20 Svante E. Cornell, Azerbaijan Since Independence, M.E. Sharpe (2011), p. 118
21 Notable examples are those of activists Enylla Fatullayev, Emin Milli and Adnan Hajizade, detained in 2007 and
2009, European Stability Initiative, “Generation Facebook in Baku. Adnan, Emin and the Future of Dissent in
Azerbaijan” (2011), accessed July 2016, http://www.esiweb.org/index.php?lang=en&id=156&document_ID=128;
International Crisis Group, “Azerbaijan: Vulnerable Stability, Europe Report N°207 “ (2010), accessed July 2016
http://www.crisisgroup.org/~/media/Files/europe/caucasus/azerbaijan/207%20Azerbaijan%20%20Vulnerable%20Stability.ashx
22 Ganimat Zahid; Mirza Sakit; Eynulla Fatullayev
23 US embassy cable 08BAKU219, Azadliq newspaper editor sentenced to four years' imprisonment, 7 March 2008,
http://cables.mrkva.eu/cable.php?id=144849
24 Human Rights Watch, “Azerbaijan: Government Cracks Down to Prevent Protests” (2011), accessed July 2016,
https://www.hrw.org/news/2011/03/12/azerbaijan-government-cracks-down-prevent-protests
25 Ibid; Amnesty International, “ The Spring that never blossomed” (2011), accessed July 2016,
https://www.amnesty.ch/de/laender/europa-zentralasien/aserbaidschan/dok/2012/aserbaidschan-eurovision17
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other activists in April.26 As people took the street, police arrested over 250 activists, 27 99 of
whom received prison sentences of up to 13 days, in March and April 2011.28 Later in the year,
twelve opposition party youth leaders and activists, and two unaffiliated activists received prison
sentences between six months and two and a half years for “participating in public disorder”
during the demonstrations.29
2012-2013 marked another spur in alleged political imprisonment of opposition activists.
Police arrested six democracy activists on narcotics possession charges, three prominent
opposition activists, and seven members of the NIDA pro-democracy youth organization.30 At least
four other youth activists were held for several days in administrative detention.31 The
presidential elections in October, while peaceful, were "undermined by limitations on the
freedoms of expression, assembly, and association that did not guarantee a level playing field for
candidates."32
By 2014, the situation had further escalated. A working group of Azerbaijani lawyers
documented the detention and conviction of thirteen more political activists of youth movements,
non-governmental organizations and political parties.33 Among those arrested were also the
leaders of the working group: the internationally prominent activist Leyla Yunus and the lawyer
Rasul Javarov. On December 5, police arrested the internationally renowned journalist Khadija
Ismayilova. She was sentenced to two months pretrial detention for allegedly inciting an
individual to attempt suicide. In 2015, courts sentenced her, Yunus, Jafarov and other activists
detained in 2014 to multi-year prison sentences.34 The year 2015 also saw the alleged political
arrest and detention of eight additional opposition activists and journalists, according to
information collected by the Azerbaijani working group on political imprisonment.35
Hence, as of 2005, the combination of shifts in detention patterns, increasing power
consolidation and post-election protests allowed for more individualized detention, which tends
to take shape in arrests of smaller groups or of individuals, and therefore, tends to be classified as
political detention less often. Meanwhile the authorities’ use of seemingly apolitical charges – such
song-contest-meinungs-und-versammlungsfreiheit-zero-points/amnesty-report-the-spring-that-never-blossomed47-s.-engl.
26 Human Rights Watch, “Azerbaijan: Activists Jailed Ahead of Planned Protest “ (2011), accessed July 2016,
http://news.trust.org//item/20110401190900-ubsvi?view=print
27 Khadija Ismayilova, “Azerbaijan: Opposition Protest Results in Wave of Arrests” (2011), accessed July 2016,
http://www.eurasianet.org/node/63222; Ellen Barry, “Police in Azerbaijan Arrest Antigovernment Protesters” New
York Times, 12 March 2011, accessed July 2016,
http://www.nytimes.com/2011/03/13/world/asia/13azerbaijan.html?_r=0; Freedom House, “A rare mass protest in
Azerbaijan: Injured Protesters and a Sacked Governor” (2012), accessed July 2016,
https://freedomhouse.org/article/rare-mass-protest-azerbaijan-injured-protesters-and-sacked-governor
28 Khadija Ismayilova, “Azerbaijan: Opposition Protest Results in Wave of Arrests”; Amnesty International, “ The
Spring that never blossomed”
29 Ibid.
30 Human Rights Watch, “Azerbaijan: Authorities Targeting Youth Activists” (2013), accessed July 2016,
https://www.hrw.org/news/2013/04/02/azerbaijan-authorities-targeting-youth-activists; US Department of State
Country Reports on Human Rights Practices for 2013, (2013), accessed July 2016,
http://www.state.gov/j/drl/rls/hrrpt/2013humanrightsreport/index.htm#wrapper
31 Human Rights Watch, “Tightening the Screws” (2013), last accessed 2016,
https://www.hrw.org/sites/default/files/reports/azerbaijan0913_ForUpload_0.pdf
32 OSCE, “Election in Azerbaijan undermined by limitations on fundamental freedoms, lack of level playing field and
significant problems on election day, international observers say” (2013), accessed July 2016,
http://www.osce.org/odihr/elections/106908
33 Eastern Partnership Civil Society Forum, “The List of Political Prisoners in Azerbaijan” (2014), accessed July 2016,
http://eap-csf.eu/assets/files/List_of_Political_Prisoners_AZ-(2)-(1).pdf
34 Country Reports on Human Rights Practices for 2013, Secretary Preface”
35 Eastern Partnership Civil Society Forum, “The List of Political Prisoners in Azerbaijan” (2015), accessed July 2016,
http://www.helpsetthemfree.org/wp-content/uploads/2016/02/The-list-of-Political-Prisoners-inAzerbaijan_December-2015.pdf
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as tax evasion and drug possession – increased in frequency as well. This development intertwines
with the monitoring of allegation of political imprisonment at the international level, which will
be the focus of the next section.
3. Post-Accession Monitoring of Political Imprisonment at the Council of
Europe: Lose Your Ground
Allegations of political imprisonment in Azerbaijan sparked various responses from the
international community. The international attention paid to Azerbaijan predominantly took form
as questioning of legitimacy of detention or calling for the release of individual prisoners. One
form of international attention that is particularly interesting due to its scope is the monitoring
process initiated by the Council of Europe.
Azerbaijan obtained special guest Status with the Parliamentary Assembly of the Council of
Europe (PACE) in June 1996 and subsequently applied for full membership in the organization.
For membership, Azerbaijan had to sign and ratify the European Convention on Human Rights
(ECHR) and “to release or to grant a new trial to those prisoners who are regarded as ‘political
prisoners’ by human rights protection organisations.”36 In particular, three high profile figures,
who were detained in the first phase of political imprisonment, the post-independence power
consolidation of Heydar Aliyev, were listed in the Opinion 222, “Azerbaijan’s application for
membership of the Council of Europe”.37 This undertaking was the result of compromise. Until the
adoption of the text, Azerbaijan had released or reduced the sentences of 89 prisoners whose
detention was allegedly political. Given this concession and the difficulty of compiling an
exhaustive list, the release became an undertaking after membership, rather than a precondition
for membership.
Similar to the arrest and detention of political prisoners, formal international monitoring
processes of political imprisonment in Azerbaijan can be divided into phases.
3.1. Council of Europe Phase 1: Piloting Observation and Contestation (2001)
The first phase of the post-accession monitoring was, in many ways, a “pilot” phase, as the exact
procedure, follow-up and criteria of individual case assessment were not clear from the outset.
The Azerbaijani authorities contested the existence of political prisoners but in parallel made
concessions on cases that were not too costly.
Two independent academic experts, the Swiss and Dutch academics and human rights
lawyers Stefan Trechsel and Evert Alkema were appointed to submit opinions on individuals
deemed, prima facie, political prisoners. Based on these opinions, the experts requested
Azerbaijani authorities to assess whether a release was possible, either with or without a retrial,
on legal or compassionate grounds. The independent experts compiled criteria for the notion of
political prisoner, defining political prisoners as persons detained in violation of the ECHR’s
fundamental freedoms, as people who received a prison sentence solely for political reasons, a
disproportionate sentence due to political activism, discriminatory treatment or clearly an unfair
trial.38 The two experts assessed 23 so-called “pilot cases” out of 716 submitted by an Azerbaijani
NGO. Of the 23 cases, the independent experts considered 17 to be individual political prisoners.
Opinion 222 (2000) Text adopted by the Assembly on 28 June 2000 (21st Sitting).
Opinion 222 (2000) Text adopted by the Assembly on 28 June 2000 (21st Sitting).
38 SG/Inf (2001)34, 24 October 2001
36
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Among the 17 prisoners were also the three individuals whose names appeared in the Opinion
222, which granted Azerbaijan membership to ECHR.39 The PACE Committee for Legal Affairs and
Human Rights withheld the publication of the experts’ report to put pressure on the government.
Azerbaijan released 89 prisoners.40 However, as mentioned earlier, Azerbaijan appeared reluctant
to release prisoners who would pose a risk for its grip on power, so only six of the 89 prisoners
released were from the list of pilot cases.41 Chiefly, individuals imprisoned in connection with the
first “wave” of political imprisonment post-independence, those who allegedly were involved in
coups, remained in prison.
President Aliyev additionally pardoned 29 other alleged political prisoners shortly after a
visit from one of the independent experts and a rapporteur of the Legal Affairs and Human Rights
Committee.
What reasons explain the concessions by the Azerbaijani authorities? There is evidence that
the authorities sought to avoid reputational damage in the first year of regular Council of Europe
membership, specifically avoid being targeted at the Parliamentary Assembly. The report of the
rapporteur suggested that releases occurred in order to appease the Council of Europe visitors,
who had warned that absent more releases, it would be difficult for them to present to PACE a
positive picture on the progress.42 Azerbaijani Delegation members had made it clear they wanted
to settle the issue of political prisoner monitoring without debate at the Assembly, therefore
needed more time, and suggested setting up a joint working group. The working group would have
compiled a list of political prisoners. When the Azerbaijani government failed to struck the issue
from the agenda, delegate members at PACE opted for a different strategy. In a meeting between
members of Azerbaijan’s parliamentary delegation and the independent expert, both had had
shaped the monitoring process as a political rather than a legal process, with the express approval
and at the satisfaction of the Azerbaijanis.43 Yet, in public debate at PACE, delegates started to
contest the term “political prisoner” as lacking legal substance.44 The strategy did not convince
the majority of PACE delegates. In a subsequent vote, PACE endorsed the definition and criteria
developed by the independent experts.
3.2. Council of Europe Phase 2: Formalization of Monitoring, Strategic
Consolidation of Cooperation and Contestation (2002-2005)
In the second phase of post-accession monitoring of political imprisonment, monitoring
procedures formalized. The Azerbaijani authorities continued to make concessions on some cases
but remained firm on others; they also became more strategic in contesting the allegations of
Opinion 222 (2000) Text adopted by the Assembly on 28 June 2000 (21st Sitting).
Political prisoners in Azerbaijan, Report, 11 January 2002, Doc. 9310, http://assembly.coe.int/nw/xml/XRef/X2HXref-ViewHTML.asp?FileID=9588&lang=EN
41 The number was obtained through a comparison of a 2002 political prisoner list by the Human Rights Club (See
Danish Immigration Service, Report on fact-finding mission to Azerbaijan: Former OPON forces in Azerbaijan, etc. (27
January to 1 February 2002), 11 November 2002, available at: http://www.refworld.org/docid/3df0f93e4.html
[accessed 11 July 2016]) and the
Political prisoners in Azerbaijan, Report, 11 January 2002, Doc. 9310, http://assembly.coe.int/nw/xml/XRef/X2HXref-ViewHTML.asp?FileID=9588&lang=EN
42 Political prisoners in Azerbaijan, Report, 11 January 2002, Doc. 9310, http://assembly.coe.int/nw/xml/XRef/X2HXref-ViewHTML.asp?FileID=9588&lang=EN, paras 121-160
43 Ibid., para 23-26
44 Parliamentary Assembly, “2002 Ordinary Session, Report, 7th Sitting” (24 January 2002),
http://assembly.coe.int/Documents/Records/2002/E/0201241500E.htm
39
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political imprisonment. In addition to preventing reputational damage, the government sought to
avoid potential sanctions at PACE, in particular the loss of voting rights.
Given the Azerbaijani authorities had agreed on case-by-case monitoring, the Council of
Europe continued in this mode instead of advocating for a general amnesty, which the rapporteur
had recommended in early 2002. On the initiative of the Council of Europe’s Secretary General,
the independent experts received a second mandate in April 2002. They agreed on a procedure
with Azerbaijani authorities, compiling their own list of alleged political prisoners and
subsequently writing, in a confidential procedure, provisional opinions, draft opinions and final
opinions elaborating who is and who is not a political prisoner.45 In particular, the experts reduced
the list of 716 cases to 212, striking out individuals who they had already examined, or who were
no longer in prison. They then adopted 104 decisions by mid-2004 and reached the conclusion
that 45 of the 104 were political prisoners.46
During this period, the response of the Azerbaijani authorities had four key traits:
First, the authorities made concessions without acquitting the prisoners in question. In
various pardons throughout the years 2002 and 2003, Azerbaijan released 284 prisoners,
although it is unclear how many of them appeared on the list of 716.47 Of those 45 considered
political prisoners by the independent experts, 32 had been released by the end of the mandate.
In order to secure a pardon, however, prisoners were required to sign a confession. Prisoners that
were not released received new trials, which were criticized by human rights organizations and
the Council of Europe as unfair.48
Second, authorities eventually released most of the “historic” cases, yet, failed to release the
more recent cases (in particular individuals arrested in connection with the 2003 elections) and
continued to detain individuals. After the new government under Ilham Aliyev had come into
power and Heydar Aliyev had died, Ilham Aliyev pardoned five individuals that appeared on the
list of pilot cases, detained for alleged coup attempts against Heydar Aliyev.49 The three
individuals who (to this date) remain in prison – Elchin Amiraslanov, Arif Nazir Kazymov, Safe
Alim Polanov – are convicted for the killing of the Police Chief and Chief of the Ministry of National
Security of the Gazakh region. A former government member and now refugee claims a
functionary of the Ministry for Internal Affairs committed the killing and not the individuals
arrested.50 However, all three received new trials that confirmed their life sentences.51
Third, it appears that the Azerbaijani government timed its pardoning decrees to influence
debates at the Council of Europe’s Parliamentary Assembly and to obstruct the work of the
independent experts. Malcolm Bruce, British liberal democrat and former Rapporteur of the
Committee on Legal Affairs and Human Rights, suggested that at least one pardoning decree at the
Council of Europe, “Cases of alleged political prisoners in Azerbaijan, Secretary General’s interim report concerning
his Independent Experts’ second mandate”, SG/Inf (2004)1, (9 January 2004), accessed July 2016,
https://www.ecoi.net/file_upload/1329_1201698596_1006-1174403666-sg-inf-2004-1.pdf
46 Ibid.
47 Parliamentary Assembly, Resolution 1359 “Political prisoners in Azerbaijan“ (2004), accessed July 2016,
http://assembly.coe.int/nw/xml/XRef/Xref-XML2HTML-en.asp?fileid=17179&lang=en
48 Human Rights Watch, “World Report 2005 – Azerbaijan” (2005), accessed: July 2016,
http://www.refworld.org/docid/421da30d2.html; Parliamentary Assembly, Doc. 10564, Follow-up to Resolution
1359 (2004) on political prisoners in Azerbaijan, 31 May 2005, http://www.assembly.coe.int/nw/xml/XRef/X2HXref-ViewHTML.asp?FileID=10908&lang=EN
49 U.S. Department of State, “Azerbaijan” (2005), accessed July 2016,
http://www.state.gov/j/drl/rls/hrrpt/2004/41670.htm
50 Political Prisoner Watch, “Safa Alim oglu Poladov”, accessed July 2016, https://prisoners.watch/en/prisoners/safaalim-oglu-poladov
51 Parliamentary Assembly, Doc. 10564, Follow-up to Resolution 1359 (2004) on political prisoners in Azerbaijan, 31
May 2005, http://www.assembly.coe.int/nw/xml/XRef/X2H-Xref-ViewHTML.asp?FileID=10908&lang=EN
45
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end of 2003 was the result of a visit in which he had made it clear that settlement of the issues
required the release of more prisoners.52 Another release in March 2004 occurred in a period of
uncertainty with regard to the continuation of the independent experts’ mandate. Most
importantly, a considerable number of releases followed shortly after the experts’ mandate had
ended, when a critical mass at PACE contested Azerbaijan’s membership in the Council of Europe.
In particular, the Parliamentary Assembly adopted, in January 2004, a resolution that stated, “If
there is no solution to the problem of the political prisoners by the Assembly’s autumn 2004 partsession, Azerbaijan’s presence within the Council of Europe will have reached a critical stage.”53
Another resolution warned Azerbaijan of losing its voting rights.54 The Azerbaijani authorities
then, in the words of CoE rapporteur Malcolm Bruce, “gave firm promises that the matter would
be settled to the Assembly's satisfaction by the autumn 2004 session“.55 Before the session in
October, president Aliyev issued three decrees that led to the release of 59 individuals who had
appeared on lists of presumed political prisoners.56 These included the pilot cases of former Prime
Minister Suret Huseynov and of self-proclaimed minority leader Alikram Gumbatov, both from the
first detention phase. For the release of the latter, mediation by the Netherlands appears to have
been decisive, for the Netherlands offered Gumbatov exile. Upon accepting it, Azerbaijani
authorities stripped Gumbatov of his nationality.57
Finally, at the Council of Europe, Azerbaijani officials took a much more concessionary
position than they did in meetings with the rapporteur; authorities moved from contestation to
destructive embracement. The Azerbaijani authorities cooperated with both the independent
experts and the Rapporteur of the Committee. All were able to conduct country visits and to speak
with prisoners of their choosing. President Aliyev met with Rapporteur Malcom Bruce up to four
times.58 Unlike in 2003, when the Azerbaijani authorities had pushed for a resolution that
recommended naming clear legal criteria for the notion of “political prisoner”, and contested the
notion with the rapporteur,59 they now changed tone at the Parliamentary Assembly. Possibly
hoping for a discontinuation of the special rapporteur’s mandate and milder language in the
upcoming resolution, Azerbaijani delegation members suggested that the list of 45 was a
commonly established, exhaustive list that would finally settle the issue.60 As Azerbaijan
cooperated, neither the Council of Europe nor the member states employed positive incentives or
punitive measures beyond threats written in the resolutions.61
3.3. Council of Europe Phase 3: In Between Mandates (2005-2009)
Parliamentary Assembly, “Political prisoners in Azerbaijan” (2004), accessed July 2016,
http://assembly.coe.int/nw/xml/XRef/X2H-Xref-ViewHTML.asp?FileID=10392&lang=en
53 Parliamentary Assembly, Resolution 1359 “Political prisoners in Azerbaijan“,
http://assembly.coe.int/nw/xml/XRef/Xref-XML2HTML-en.asp?fileid=17179&lang=en
54 PACE Resolution 1358 (2004) “Functioning of democratic institutions in Azerbaijan”, 27 January 2004
55 Parliamentary Assembly, Doc. 10564, Follow-up to Resolution 1359 (2004) on political prisoners in Azerbaijan, 31
May 2005, para 91, http://www.assembly.coe.int/nw/xml/XRef/X2H-Xref-ViewHTML.asp?FileID=10908&lang=EN
56 Ibid.
57 Ibid.
58 Parliamentary Assembly, “Report on Ordinary Session, 22 June 2005”, accessed July 2016,
http://assembly.coe.int/Documents/Records/2005/E/0506221500E.htm
59 Parliamentary Assembly, “Political prisoners in Azerbaijan”,http://assembly.coe.int/nw/xml/XRef/X2H-XrefViewHTML.asp?FileID=10392&lang=en para 20
60 Parliamentary Assembly,” Report on Ordinary Session, 27 January 2004”, accessed July 2016,
http://assembly.coe.int/Documents/Records/2004/E/0401271000E.htm
61 Julian Lehmann, Interview with Christoph Strässer, 04 April 2014
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PACE’s ability to exercise pressure for the release of political prisoners had so far hinged on the
Azerbaijani government trying to avoid public shaming and anticipating that PACE would
discontinue monitoring at the end of the second mandate. In a next monitoring phase, PACE was
however able to maintain leverage by questioning Azerbaijan’s membership benefits in the
Council of Europe. Afterwards, however, the Azerbaijani government gained the upper hand with
a twofold tactic of “domesticizing” monitoring and the challenging of issue-specific monitoring.
In March 2005, Malcolm Bruce, Rapporteur of the Committee on Legal Affairs and Human
Rights, put up for debate a resolution calling on the “process of releasing prisoners to be continued
and completed without delay“ and threatening that otherwise “the Assembly will shortly revise
its attitude towards Azerbaijan.“62 Just four days later, president Aliyev signed a decree releasing
51 presumed or “determined” political prisoners, among them two pilot cases.63 Rapporteur Bruce
characterized the release as a surprising and decisive action. In the PACE debate on political
prisoners in June, Bruce suggested that the Council of Europe had become closer to “closing the
books” on the issue due to the release.64 Accordingly, the June 2005 follow-up resolution65 did no
longer threat to strip Azerbaijan of its voting rights, nor did it question Azerbaijan’s membership
in the organization.66 There are reasons to believe that Bruce might have offered Aliyev to speak
more positively of Azerbaijan in case of release. In a non-attributable consultation, a former
delegate to PACE said that it was common practice that rapporteurs exchanged positive language
in exchange for releases.67
Against the background of a relatively positive resolution, the follow-up no longer received a
special mandate of the Committee of Legal Affairs and Human Rights. Rather, a domestic
Azerbaijani Task Force assumed responsibility. The task force comprised representatives of the
authorities and of human rights NGOs, supposedly instructed to cooperate with the Monitoring
Committee.
Yet, the shifting of monitoring responsibility to the domestic level marked a critical juncture:
monitoring of political imprisonment lost considerable momentum. Judging by its lack of activity,
the task force presented Azerbaijan’s officials an opportunity to put the issue to rest. The task
force met only once when a Council of Europe committee rapporteur visited, and took no action
on any of the previous recommendations from the Parliamentary Assembly.68 Additionally, the
fact that there was no longer a special mandate for political imprisonment subsumed the issue
into broader questions of democratic and human rights compliance, on which Azerbaijan
managed considerable diplomatic victory. Observers outside and inside the Council of Europe
called the subsequent months a turning point for the relation between the Council of Europe and
62 Parliamentary Assembly, “Follow-up to Resolution 1359 (2004) on political prisoners in Azerbaijan” (2005),
accessed July 2016, http://assembly.coe.int/nw/xml/XRef/X2H-Xref-ViewHTML.asp?FileID=10805&lang=en
63 20. Finally, the latest decree, that of 20 March 2005, constitutes an unprecedented and virtually
unexpected step on the part of the authorities, since the114 prisoners pardoned include 6 political
prisoners – Natig Efendiyev (pilot case no. 7)10, Raqim Gaziyev (pilot case no. 3)11, Natiq Ahmedov,
Hamlet Mammedov, Fazil Mukhtarov and Tofiq Qasimov – and 43 presumed political prisoners (3 from
the list of 716 and 40 from the additional list
64 Parliamentary Assembly, “Report on Ordinary Session, 22 June 2005”,
http://assembly.coe.int/Documents/Records/2005/E/0506221500E.htm
65 Parliamentary Assembly, “Resolution 1457, Follow-up to Resolution 1359 (2004) on political prisoners in
Azerbaijan” (2005), accessed July 2016, http://assembly.coe.int/nw/xml/XRef/Xref-XML2HTMLen.asp?fileid=17355&lang=en
66 See also PACE Resolution 1456 (2005) Functioning of democratic institutions in Azerbaijan”, 22 June 2005,
67 Katrin Kinzelbach and Julian Lehmann, unattributable consultation, 29 April 2015.
68 Parliamentary Assembly, “The follow-up to the issue of political prisoners in Azerbaijan” (2007), accessed July
2016, http://assembly.coe.int/nw/xml/XRef/X2H-Xref-ViewHTML.asp?FileID=11794&lang=EN
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Azerbaijan.69 Those advocating for a tougher stance on Azerbaijan in the Council of Europe, in
regards to the widespread irregularities at the 2005 elections, lost momentum and majority. PACE
did not adopt any sanctions, and the debates were, according to an NGO report, increasingly
dominated by a group of delegates that praised Azerbaijan’s past progress.70 Azerbaijani
authorities, in turn, became increasingly confident. They threatened to leave the Council of Europe
should they continue being criticized.71
Finally, Azerbaijani delegates challenged the notion of political imprisonment on a conceptual
level. According to political commentator Gerald Knaus, Azerbaijan pushed for adoption of a
common definition by organizing “international conferences, to which dozens of PACE members
were invited.”72 PACE delegates critical of the monitoring of political imprisonment in Azerbaijan
tabled a motion for a resolution in 2009 reverted back to the argument that there was no
universally accepted definition of the notion “political prisoner”, although the criteria suggested
by the independent experts had been approved by a majority of PACE at the time. In December
2009, the German social democrat Christoph Strässer was appointed to draft such a definition in
addition to his mandate as rapporteur for the follow-up on the issue of political imprisonment in
Azerbaijan.73 The quarrel about the definition would ultimately lead to the effective end of the
monitoring process at the Council of Europe and a diplomatic victory for the Azerbaijani
government.
3.4. Council of Europe Phase 4: Re-Defining Political Imprisonment, Obstruction
and Resignation (2009-2015)
In the following years, the work on the definition for the Azerbaijani authorities became an
opportunity for obstruction of country- and case-specific work on political imprisonment. Within
PACE, Azerbaijan regained the upper hand. Individual Council of Europe member states,
meanwhile, where unwilling to fill the void created by the effective end of the issue and countryspecific PACE monitoring.
In April 2011, a group of PACE delegates sought a motion for a resolution that questioned the
credibility of PACE given the absence of a definition “general definition that could be used as an
applicable rule in every member state”.74 The motion recommended that such definition “should
be adopted by the Assembly before any report on political prisoners in a particular case or country
is prepared.“75 Remarkably, it was not only a core group of pro-Azerbaijani PACE delegates who
argued that PACE needed to adopt a definition of political prisoners before case and countryspecific work could continue. The European Commission, too, pointed out that a definition was
lacking.76 Moreover, several CoE member states at the time were keen on maintaining a continued
working relationship with Azerbaijan amidst tensions with Russia over the 2008 war in Georgia
Gerald Knaus, “Europe and Azerbaijan: The End of Shame” 26:3(2015) Journal of Democracy
European Stability Initiative, “Caviar Diplomacy, How Azerbaijan silenced the Council of Europe” (2012), accessed
July 2016, http://www.esiweb.org/pdf/esi_document_id_131.pdf
71 Ibid.
72 Gerald Knaus, “Europe and Azerbaijan: The End of Shame” (2015), p 13
73 Parliamentary Assembly, Committee on Legal Affairs and Human Rights, “Report Doc. 13011: The definition of
political prisoner” (05 September 2012), accessed July 2016, http://assembly.coe.int/nw/xml/XRef/XrefXML2HTML-en.asp?fileid=18995&lang=en
74 Parliamentary Assembly, “Motion for a resolution Doc. 12587: Criteria for the definition of a political prisoner” (13
April 2011), accessed July 2016 https://assembly.coe.int/nw/xml/XRef/Xref-XML2HTMLen.asp?fileid=12668&lang=en
75 Ibid.
76 Julian Lehmann, Interview with Christoph Strässer, 04-04-2014
69
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and given a high oil price. They instructed PACE members to err on the side of Azerbaijan as a
strategic move against Russia.77 In addition, the Azerbaijani authorities allegedly handed out
“gifts” to individual delegates78 – infamously dubbed “caviar diplomacy”79 – but these gifts are only
part of the picture.
It was in this climate that Azerbaijan obstructed the work of PACE rapporteur Christoph
Strässer, a striking contrast to the treatment of his predecessor Malcolm Bruce and the
rapporteurs of the Committee on the Honouring of Obligations and Commitments by Member
States of the Council of Europe (Monitoring Committee). The Azerbaijani embassy denied three of
Strässer’s visa applications. The chairpersons of the Monitoring Committee intervened80 and the
German foreign office issued multiple protest notes and summoned the Azerbaijani ambassador
to Germany, but to no avail.81 Once Azerbaijan was afloat in PACE, it became increasingly difficult
for PACE delegates and member states’ government officials to advocate for negative incentives
sanctioning Azerbaijan’s obstruction on the issue of political imprisonment. Within the German
Foreign Office, diplomats discussed at the time whether the government should actively advocate
for suspending Azerbaijan’s voting rights. Diplomats reportedly expected that there would be no
majority in PACE for such a move, and that even if successful, the organization would lose the
remaining grip that it still had on the issue. They quickly dropped the idea.82
In 2013, attempts to curb the power of Azerbaijan on the political imprisonment issue
continued to fail as an increasing number of delegate in PACE rejected Strässer’s work. Strässer
had worked on a report on the definition of political prisoners and its application to Azerbaijan,
compiling a list of some 60 individual cases, and on a resolution. In essence, the report and draft
resolution simply endorsed the criteria compiled more than ten years earlier by independent
experts.83 Not only did the resolution approve of the independent experts criteria, but also the
independent experts had already applied the definition in hundreds of cases they examined.
Strässer insinuated that there were other reasons behind the debate on the definition; reneging a
new definition would “raise suspicions, however unjustified, about the real reasons for opening
such a debate which is potentially endless and most likely fruitless.”84 PACE ultimately adopted
the definition without amendments, although several speakers questioned the validity of the
definition.85 Most importantly, delegates who wanted to obstruct the definition argued that
Katrin Kinzelbach, unattributable consultation, 2 June 2014
Katrin Kinzelbach, unattributable consultation, 2 June 2014
79 79 European Stability Initiative, “Caviar Diplomacy, How Azerbaijan silenced the Council of Europe” (2012)
80 Parliamentary Assembly, Committee on Legal Affairs and Human Rights, “Report Doc. 13079: The follow-up to the
issue of political prisoners in Azerbaijan” (14 December 2012), accessed July 2012,
http://assembly.coe.int/nw/xml/XRef/Xref-XML2HTML-EN.asp?fileid=19217&lang=en para 3
81 Julian Lehmann, Interview with Christoph Strässer, 04-04-2014
82 Julian Lehmann, Interview with Christoph Strässer, 04-04-2014
83 Parliamentary Assembly, Committee on Legal Affairs and Human Rights, “Report Doc. 13011: The definition of
political prisoner” (05 September 2012), http://assembly.coe.int/nw/xml/XRef/Xref-XML2HTMLen.asp?fileid=18995&lang=en;
a. if the detention has been imposed in violation of one of the fundamental guarantees set out in the European
Convention on Human Rights and its Protocols (ECHR), in particular freedom of thought, conscience and religion,
freedom of expression and information, freedom of assembly and association;
b. if the detention has been imposed for purely political reasons without connection to any offence;
c. if, for political motives, the length of the detention or its conditions are clearly out of proportion to the offence the
person has been found guilty of or is suspected of;
d. if, for political motives, he or she is detained in a discriminatory manner as compared to other persons; or,
e. if the detention is the result of proceedings which were clearly unfair and this appears to be connected with
political motives of the authorities.” (SG/Inf(2001)34, para 10)
84 ibid.
85 Allegedly because it would be use to exempt criminals from legal responsibility, in particular terrorists, as long as
there was no definition of terrorism. See verbatim record of Thirty-third Sitting, Wednesday 3 October 2012 at 3.30
77
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because political imprisonment implied unlawfulness of detention, it was the responsibility of the
courts – and of the courts only – to define the term. Rather than proposing changes to the
definition, one amendment proposed to take away any determinative power over the question of
political prisoners from the Parliamentary Assembly, and to leave it only with the European Court
of Human Rights (ECtHR).86 PACE delegates eventually rejected the amendment after a split vote
of 89 for and 89 against, with 5 abstentions. Some 141 delegates were not present at the debate.
Again, with a vote that close and absence rate that high, the competence of the Council of Europe
to monitor political imprisonment was jeopardized not only by a few pro-Azerbaijani PACE
delegates, but also by some delegates from EU countries.
Although PACE had adopted the definition of political imprisonment in October 2012, some
delegates in PACE called into question the draft resolution that named individual prisoners.87
Alongside the Special Rapporteur’s report, the Monitoring Committee presented a separate,
generic report on Azerbaijan that included a paragraph on political imprisonment. Delegates
against the resolution criticized the report for using the definition of political prisoner too broadly
(in particular, they objected that the definition was broader than that of Amnesty International’s
prisoners of conscience). Even though the Monitoring Committee’s rapporteur, allegedly,
whitewashed the report after successful lobbying of the Azerbaijani delegation and their allies in
the CoE, the opposing delegates argued that there should not be two resolutions on Azerbaijan,
and that PACE was singling out Azerbaijan.88 Delegates rejected Strässer’s resolution and report
by a wide margin, yet they adopted the resolution of the Monitoring Committee with an
overwhelming majority.89
The rejection of Strässer’s resolution had significant effects on political imprisonment:
First, it effectively put to an end to the expressly mandated PACE monitoring of political
imprisonment in Azerbaijan. PACE handed over monitoring responsibilities to the Monitoring
Committee from January 2013 until June 2014, when Azerbaijan began its chair of the Committee
of Ministers of the Council of Europe. Pressure from human rights NGOs was rising and a motion
for a resolution at PACE pushed for new monitoring.90 Still, the Azerbaijani delegation successfully
lobbied for a generic mandate on human rights rather than on political prisoners specifically.
What is more, PACE did not appoint Dutch Pieter Omtzigt, a critic of Azerbaijan, but Pedro
Agramut, who according to NGOs and fellow PACE delegates91 had a track record of defending
p.m., http://assembly.coe.int/Documents/Records/2012/E/1210031530E.htm Elena Nikolaeva, a delegate from the
Russian Federation, remarked that the definition of political prisoners may serve to exempt a person from
punishment that had committed a crime but was ‘habitually involved in political activity’.
85 Tadeusz Iwínski, a delegate from Poland reminded that separatist in Chechnya were considered as terrorists only
after 9/11 while that framing had before ‘been a significant bone of contention’.
86 Ibid.
87 Parliamentary Assembly, Committee on Legal Affairs and Human Rights, “Addendum to the report Doc. 13079 Add.:
The follow-up to the issue of political prisoners in Azerbaijan” (22 January 2013), accessed July 2016,
http://assembly.coe.int/nw/xml/XRef/Xref-XML2HTML-en.asp?fileid=19317&lang=en; Parliamentary Assembly,
Committee on Legal Affairs and Human Rights, “Report Doc. 13079: The follow-up to the issue of political prisoners in
Azerbaijan” (14 December 2012), http://assembly.coe.int/nw/xml/XRef/Xref-XML2HTMLEN.asp?fileid=19217&lang=en
88 European Stability Initiative, “A Portrait of Deception. Monitoring Azerbaijan or why Pedro Agramunt should
resign” (22 January 2013), accessed July 2016,
http://www.esiweb.org/index.php?lang=en&id=156&document_ID=134
89 Parliamentary Assembly, Voting Results, accessed July 2016, http://assembly.coe.int/nw/xml/Votes/DB-VotesListingSession-EN.asp?selSession=201606
90 Parliamentary Assembly, “Motion for a resolution Doc. 13484: Azerbaijan’s Chairmanship of the Council of Europe:
What follow-up on respect for human rights?” (08 April 2014), accessed July 2016,
http://assembly.coe.int/nw/xml/XRef/Xref-XML2HTML-en.asp?fileid=20722&lang=en
91 British MP Who Challenged Aliyev Says 'The Reputation Of The Council Of Europe Is At Stake', 7 July 2014, Radio
Azadlyg, http://www.azadliq.org/a/25447437.html
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Azerbaijan on the issue of political imprisonment at PACE, and who in parallel held the post of a
co-rapporteur of the Monitoring Committee.
Second, the rejection of the report led to new waves of detention.92 Azerbaijani authorities
told several individuals detained in 2013 that they saw no longer any need for restraint, because
the Council of Europe could no longer protect political opponents.93 Former rapporteur Christoph
Strässer interpreted the detention of Anar Mammadli, a lawyer that had cooperated with Strässer
on the compilation of a list of political prisoners as a “signal” to governments critical of
Azerbaijan.94
Third, Azerbaijani authorities were able to use the rejected resolution to rebut future
allegations of political imprisonment and to question the notion of a “political prisoner”
altogether. President Aliyev, who had cooperated remarkably well with the independent experts
in the first mandate, at a press conference in 2014 not only denied the existence of political
imprisonment in Azerbaijan, but also maintained that no definition existed:
Last December there was a broad discussion in the Council of Europe
about this issue and the resolution […] launched by some members of the
assembly […] failed. The majority of the assembly did not support that
resolution and I think that means that what I said last time to the
European Commission, that there are no political prisoners in Azerbaijan,
is also confirmed by one of the most important institutions of Europe,
and, of the world. Azerbaijan is a member of the Council of Europe for
more than ten years, we are members of European Court of Human
Rights, and, a priori, there can not be political prisoners in our country
[sic]. If somebody is treated in not a fair way, there is always the chance
to apply to European Court and we are complying with the decisions of
European Court. [..] also, I’d like to say that there are no definitions of
political prisoners. We think that the definition of political prisoners if
adopted by European Parliament or by Council of Europe would be good
idea [sic]. Then it would be really easy to identify who is political prisoner
and who is not [sic]. So I say I think that the best answer to your question
is the decision of the Parliamentary Assembly of Europe of January
2013.95
There is little evidence of any threats of punitive measures offered to Azerbaijan behind the scenes
that would have challenged Azerbaijan’s position. No member state appeared to have offered
“carrots” or threatened to use political or economic “sticks” to facilitate the release of individual
prisoners.96 What is more, US foreign policy did not compensate for the now ineffective
monitoring process at PACE, or only in some individual cases (see below). David Kramer, former
United States Assistant Secretary of State for Democracy, Human Rights and Labor, regretted that
92 Katrin Kinzelbach, unattributable consultation, 2 June 2014; Council of Europe, “Observations on Azerbaijan:
Freedom of expression, assembly and association deteriorating in Azerbaijan” (23 April 2014), accessed: July 2016,
http://www.coe.int/en/web/commissioner/-/freedom-of-expression-assembly-and-association-deteriorating-inazerbaijan
93 Julian Lehmann, Interview with Christoph Strässer, 04-04-2014
94 Julian Lehmann, Interview with Christoph Strässer, 04-04-2014
95 NATO Secretary General with President of Azerbaijan - Joint Press Point, 15 January 2014
96 Julian Lehmann, unattributable consultation, 25 November 2015
Julian Lehmann, Interview with Christoph Strässer, 04-04-2014
Julian Lehmann and Katrin Kinzelbach, Interview with David J. Kramer, 10 November 2014
Julian Lehmann, consultation with Georgi Gogia, 11 December 2014
Katrin Kinzelbach, unattributable consultation, 2 June 2014
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the US had failed to coordinate its own efforts for the release of political prisoners with the Council
of Europe monitoring process.97
A more robust handling of Azerbaijan happened only two years after the 2013 debate, when
the Council of Europe decided to withdraw from a multi stakeholder Working Group on Human
Rights Issues. The Azerbaijani government had established the working group in October 2014 at
the initiative of Council of Europe Secretary General Thorbjørn Jagland.98 A press release
announcing the decision to leave lamented the fact that “an increasing number of human rights
defenders has recently been imprisoned.”99 Behind the scenes, Thorbjørn Jagland had warned in
2014 that the arrest of renowned journalist Khadija Ismayilova would crossing the red line.100 Yet,
the withdrawal occurred only some year after Ismailova had been arrested.
4. Individual Cases in Comparison
The preceding analysis of the Council of Europe process suggests that international attention did
lead to releases in Azerbaijan. In particular, it does point to the “robustness” of the Council of
Europe monitoring, the nature of charges and the risk of a particular individual to the
government’s monopoly of power. To complement the analysis, three cases are selected from the
detention phase 4 (“Towards Imprisonment of Individual Activists”, see above) and the
monitoring phases 2-4 (“Formalization”, “In Between Mandates”, “Re-Defining Political
Imprisonment, Obstruction and Resignation”). All individuals are opposition activists. Two were
released, one was not.
Name
Eynulla Fatullayev
Arif Hajili
Ilgar Mammadov
4.1.
Detained
2007
2005
2011
2013
Released
2011
2005
2012
-
Opposition activist
Opposition politician
Opposition politician
Eynulla Fatullayev
Arrest, Detention and Release
Eynulla Fatullayev was editor of the Russian language weekly “Realny Azerbaidjan”, as well as of
the Azerbaijani language daily newspaper “Gündelik Azerbaycan”, two publications critical of the
government. Fatullayev was beaten in public in Baku; according to Amnesty International
“allegedly on account of his series of articles entitled ‘Karabakh Diary’, […] in which he advocated
dialogue with the Armenians of Karabakh”101 and raised doubts of the official narrative of the
Khojaly massacre of 26 February 1992 against ethnic Azerbaijanis and of the Karabakh war. In
October 2006, his father was kidnapped and released the moment Fatullayev paused publishing
“Realny Azerbaidjan” and “Gündelik Azerbaycan”.102
In April 2007, Fatullyaev faced charges of libel, brought by Khojaly survivors and two former
soldiers. They alleged Fatullayev had authored comments on the website “AzerbaijaniTriColor”,
which insinuated that Azerbaijani armed forces were responsible for civilian deaths in the Khojaly
Julian Lehmann and Katrin Kinzelbach, Interview with David J. Kramer, 10 November 2014
Council of Europe, “Council of Europe leaves Azerbaijan human rights working group” (7 October 2015), accessed
July 2016, http://www.coe.int/en/web/portal/-/council-of-europe-leaves-azerbaijan-human-rights-working-group
99 Ibid.
100 Julian Lehmann, consultation with Georgi Gogia, 11 December 2014
101 Amnesty International, Azerbaijan: Critical voices again silenced by libel laws, EUR 55/008/2007 (Public)
102 Ibid.
97
98
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massacre.103 Fatullayev claimed that the authorities had fabricated the charges to punish him for
his critical publishing and editing record.104 In April 2007, he received a two and a half years
prison sentence for libel. In the same year, he was convicted for terrorism, incitement of ethnic
hatred and tax evasion, increasing his prison term to eight and a half years, the longest sentence
ever imposed on a journalist in Azerbaijan. The charges of terrorism and incitement grounded on
a newspaper article by Fatullayev that discussed potential consequences of Azerbaijani support
for a US-brokered resolution on economic sanctions against Iran.105 The article suggested that Iran
might retaliate against Azerbaijan, or that social unrest by ethnic Iranians in Azerbaijan may
follow. According to the April 2010 Judgment passed by the European Court of Human Rights,
Fatullayev’s conviction had violated Azerbaijan’s obligation to respect the right of freedom of
expression.106 Some months after the judgment, in July 2010, Fatullayev was sentenced to another
two and a half years imprisonment for heroin possession.107 The supreme court of Azerbaijan
quashed the charges of terrorism and incitement of hatred, but upheld the charges for heroin
possession.
On 26 May 2011, before he had served half of his new sentence, Eynulla Fatullayev was
released following a presidential pardon, alongside other prisoners.108
International Attention and Reasons for Release
Fatullayev’s detention quickly triggered reactions of non-state and state actors. First, Amnesty
International considered him a prisoner of conscience detained for exercising his freedom of
expression,109 and Reporters without Borders cited Fatullayev as an example of the “use of jail
terms to silence journalists.”110 Second, in a closed-door meeting of the OSCE member states, the
OSCE and the Council of Europe, government officials enquired about Fatullayev’s detention as
early as June 2007.111 The presidential chief of staff stated that Azerbaijan was keen to cooperate
with the international community and hinted that president Aliyev may pardon some journalists
on the Azerbaijani National Press Day on 22 July.112 At the same time, the chief of staff made clear
that Fatullayev would not be one of them, for he was considered an "Iranian and Armenian spy."113
Finally, in September 2007, Council of Europe’s Human Rights Commissioner had met with
President Aliyev and had, on his own account, asked for Fatullayev’s release.114 A source of the US
embassy in Baku specified that Hammerberg had not asked for a pardon, but instead had said
journalists should not be jailed for their work at all.115
Ibid.; Fatullayev v. Azerbaijan, Application No.40984/07, 22 April 2010
Amnesty International, Azerbaijan: Critical voices again silenced by libel laws, EUR 55/008/2007 (Public)
105 Ibid.; Fatullayev v. Azerbaijan, Application No.40984/07, 22 April 2010
106 Fatullayev v. Azerbaijan, Application No.40984/07, 22 April 2010
107 Amnesty International, “Imprisoned Azerbaijani journalist faces new jail term” (6 July 2010), accessed July 2016,
https://www.amnesty.org/en/press-releases/2010/07/17467/
108 Radio Free Europe/ Radio Liberty, “Jailed Azerbaijani Journalist Released After Four Years In Prison” (26 May
2011), accessed July 2016,
http://www.rferl.org/content/eynulla_fatullayev_released_azerbaijan_journalist/24206150.html
109 Amnesty International, Azerbaijan: Critical voices again silenced by libel laws, EUR 55/008/2007 (Public)
110 Reporters Without Borders, Azerbaijan: Seven journalists to spend National Press Day in Prison, 20 July 2007,
https://rsf.org/en/news/seven-journalists-spend-national-press-day-prison
111 US embassy cable 07BAKU758, "Friends of Azerbaijan" demarche presidential chief of staff on media freedom, 18
June 2007, http://cables.mrkva.eu/cable.php?id=112459
112 Ibid.
113 Ibid.
114 Report by the Commissioner for Human Rights Mr. Thomas Hammerberg on his visit to Azerbaijan, 3-7 September
2007, CommDH(2008)2, 20 February 2008
115 US embassy cable 07BAKU1140, COE Human Rights Commissioner Thomas Hammarberg's visit to Baku, 17
September 2007, http://cables.mrkva.eu/cable.php?id=122398
103
104
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Three years of relative inaction ended in the run-up to the European Court of Human Rights
proceedings on Fatullayev’s case. Hammerberg visited Fatullayev and other inmates, among them
journalist Ganimat Zahid – in prison in March 2010. On that visit, Hammerberg also spoke with
President Aliyev, the Ministers of Internal Affairs, Justice, and Foreign Affairs, as well as the
Prosecutor General, and the Head of the Azerbaijani delegation to the PACE.116
The European Court’s 2010 judgment gave critics of Azerbaijan the opportunity to mobilize.
At the OSCE Permanent Council meeting on 28 January 2010, the EU states were still divided on
whether or not to mention Fatullayev’s case in a common statement; according to a US embassy
cable, “a handful of member States apparently blocked the statement at the last minute.”117 In
contrast, after the judgment, the EU echoed the view expressed by the OSCE Representative on
Freedom of the Media criticizing the continued detention.118 What is more, Fatullayev became one
of the few cases of individuals mentioned in a resolution by the PACE Monitoring Committee,119
and Hammerberg became more vocal in calling for Fatullayev’s release.120
The judgment also spurred discussion of Fatullayev’s case in the Council of Europe Committee
of Ministers. As part of the process overseeing the execution of judgments by the CoE member
States, the Committee of Ministers in November 2010 held a special meeting debating the
execution of the court’s judgment on Fatullayev.
There is inconclusive evidence why Fatullayev was released only in May 2011. One political
commentator attributed Fatullayev’s release to the government’s desire to portray Azerbaijan
positively after increased media attention spurred by victory in the Eurovision Song Contest.121
Remarkably also, the release occurred just two days after a Twitter campaign was initiated by
Amnesty International. While the Eurovision spotlight and NGO action might have determined the
timing of the release, it is doubtful that they were the cause for release. Instead, there is evidence
that Fatullayev’s detention was linked to an intra-governmental turf war. US diplomats in Baku
suggested, “Fatullayev is now in trouble because he crossed his backers”, notably of Emergency
Situations Minister Heydarov and Minister of National Security Eldar Mahmudov, who protected
Fatullayev because he published articles critical of their rivals.122
4.2.
Arif Hajili
Arrest, Detention and Release
Arif Hajili was a deputy chairperson of the opposition party Müsavat Party. Since September 2014,
he has been the party’s chairperson. After the Azerbaijani presidential elections of October 2003,
https://wcd.coe.int/ViewDoc.jsp?p=&id=1642017&direct=true
US embassy cable - 10USOSCE31, OSCE weekly highlights: January 25-29, 2010, 3 February 2010,
http://cables.mrkva.eu/cable.php?id=247022
118 European Union, EU statement on new sentencing of Azerbaijani journalist, OSCE Permanent Council No. 822,
Vienna, 8 July 2010, PC.DEL/740/10
119 Parliamentary Assembly, Resolution 1750 (2010), The functioning of democratic institutions in Azerbaijan,
http://assembly.coe.int/nw/xml/XRef/Xref-XML2HTML-en.asp?fileid=17890&lang=en
120 Report by Thomas Hammarberg, Commissioner for Human Rights of the Council of Europe, following his visit to
Azerbaijan from 1 to 5 March 2010, CommDH(2010)21, 29 June 2010,
https://wcd.coe.int/ViewDoc.jsp?p=&id=1642017&direct=true; Council Of Europe Rights Official Criticizes
Azerbaijan, Radio Free Europe, 30 June 2010,
http://www.rferl.org/content/Council_Of_Europe_Rights_Official_Criticizes_Azerbaijan/2087157.html
121 Azerbaijan: Is Fatullayev’s Release Related to Eurovision Preparation? Shahin Abbasov, Eurasianet, 27 May 2011,
http://www.eurasianet.org/node/63567
122 US embassy cable - 07BAKU886, Emergency situations minister heydarov's rising influence (c-re7-00784), 12 July
2007, http://cables.mrkva.eu/cable.php?id=115191
116
117
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Hajili was among the organizers of political mass rallies against the allegedly distorted. He
appeared on a tribune and gave a speech on a square where the protest was held. According to
the OSCE election observation report, violence broke out in front of Müsavat Party headquarters
on 16 October, while “in two separate incidents there, EOM observers witnessed police attack
peaceful opposition supporters.” Hajili was among a group of 400 people arrested for allegedly
instigating or taking part in the violence. Hajili was put on trial in May 2004, in a group of seven
accused of organizing the protests. On 22 October, he was convicted for organizing public disorder
and committing acts of violence against state officials; Hajili was sentenced to five years
imprisonment. The court of appeal upheld the decision on 19 November 2004. Following a
cassation appeal, the supreme court upheld the judgment against Hajili on 29 March 2005.
However, nine days earlier, on 20 March 2005, President Ilham Aliyev issued a pardon decree,
releasing Hajili and the other six alleged organizers.
On 26 July 2011, the European Court of Human Rights gave its judgment about the case of
Hajili and three others in a joint case. The court determined that the trial had been unfair and
ordered compensation to be paid to Hajili.123
Arif Hajili was re-arrested in 2011 in connection with the spring 2011 protests. Hajili had
been arrested prior to the protests on 2 April 2011, and was charged with organizing mass
protests. Together with three other opposition leaders, he was sentenced on 3 October 2011 to
two and a half years in prison. A presidential pardon released him on 22 June 2012, well before
half of his prison sentence was over.
International Attention and Reasons for Release
As Hajili was detained twice, his releases illustrate the different impacts of international attention
at different phases of the Council of Europe’s monitoring.
Hajili’s first detention and release fell into the second mandate of the Council of Europe’s
monitoring on political imprisonment, when Azerbaijan’s membership was being questioned and
the authorities had not yet learned to counter allegations of political imprisonment effectively.
Some days before Hajili’s release, on 14 March 2005, 15 parliamentarians presented a motion for
a resolution, which suggested that more individuals should be released. The state of affairs was a
“real disappointment given hopes placed by international observers, including the parliamentary
assembly, in the authorities’ willingness to resolve the issue of the presumed political prisoners
once and for all, […].”124 A background report and draft resolution of the Committee on Legal
Affairs and Human Rights mentioned the case of Arif Hajili. 125 After Hajili’s release, the report
was worded more positively, calling the presidential pardon “further evidence of the authorities’
willingness to be more active in resolving the issue of the presumed political prisoners.” Given
that there is no evidence for unilateral negotiations or incentives for release, there are strong
reasons to believe that the monitoring process did play a role in achieving his first release.
The role of the Council of Europe changed in the events of the second arrest and release.
Hajili’s case was at first only raised by NGOs and not by the Council of Europe. Amnesty
International in a report on the 2011 protests stated that “there is no credible evidence that any
of the imprisoned opposition supporters were engaged in anything more than the legitimate
123 European Court of Human Rights, Case Of Huseyn And Others v. Azerbaijan, Applications nos. 35485/05,
45553/05, 35680/05 and 36085/05” (26 October 2014)
124 Parliamentary Assembly, “Doc. 10473: Follow-up to Resolution 1359 (2004) on political prisoners in Azerbaijan”
(14 March 2005)
125 Parliamentary Assembly, Doc. 10564, Follow-up to Resolution 1359 (2004) on political prisoners in Azerbaijan, 31
May 2005
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exercise of their right to freedom of expression and association, when proceeding with a protest
rally that had been unreasonably and unlawfully denied authorization.” Accordingly, Amnesty
International adopted Hajili as a prisoner of conscience and called for his release.126 However,
neither Council of Europe officials nor members of the Monitoring Committee raised the case,
despite the fact that they had met him in person on a fact-finding mission in Baku.127 Indeed,
Hajili’s arrest and release fell into a phase of inaction by the Council of Europe, paralyzed by the
contestation around a country-specific monitoring mandate and the discussion around the
definition of political prisoner.
Instead, there is some evidence on US involvement in Hajili’s release. US Secretary of State
Hillary Clinton had visited Azerbaijan two weeks before Hajili’s release on 22 June 2012 and called
for the release of opposition members during her visit.128 However, in her memoires “Hard
Choices”, Clinton writes that the reason for her visit had been to push for a Caspian route of natural
gas delivery with industry leaders at the Caspian Oil and Gas Show in Baku.129 David Kramer,
former United States Assistant Secretary of State for Democracy, Human Rights and Labor, was
unaware of any negotiations beyond a generic call for the release of opposition activists and
human rights compliance.130 While evidence on the reasons for Hajili’s second release remains
inconclusive, the Council of Europe no longer appeared to have played a decisive, if any, role.
4.3.
Ilgar Mammadov
Arrest, Detention, Release
Ilgar Mammadov is a co-founder and chairperson of the opposition party Republican Alternative
Civic Movement (REAL) and vocal critic of the Azerbaijani government. In 2013, he intended to
run for presidential elections.
On 23 January 2013, riots broke out in the town of Ismaili, targeting property of the labor
minister’s family.131 Mammadov and two colleagues traveled to the site after the riot to obtain
firsthand information, and subsequently blamed President Ilham Aliyev for the riots.132 Charged
with accusations of “organising or actively participating in actions causing a breach of public
order”,133 Mammadov was detained on 4 February 2013. Azerbaijani authorities refused to let a
Council of Europe representative be present during the court proceedings. In April 2013, the
charges against him were changed to the offence of resistance or violence against public officials,
posing a threat to their life or health, which carried a heavier sentence. In March 2014, Mammadov
was sentenced to seven years imprisonment.
Amnesty International (2011), The Spring that Never Blossomed – Freedoms supressed in Azerbaijan
Committee on the Honouring of Obligations and Commitments by Member States of the Council of Europe
(Monitoring Committee) Honouring of obligations and commitments by Azerbaijan, Information note by the corapporteurs on their fact-finding visit to Baku (8-10 April 2009), AS/Mon(2009)19,
http://assembly.coe.int/CommitteeDocs/2009/20090609_amondoc19_2009.pdf
128 Radio Free Europe/Radio Liberty, “Azerbaijani President Amnesties 66 Inmates, Including Political Prisoners” (22
June 2012), accessed July 2016, http://www.rferl.org/content/azerbaijan-president-pardons-66-inmates-including9-political-prisoners/24623273.html
129 Hillary Rodham Clinton (2014), Hard Choices, Simon and Schuster (2015), p. 212.
130 Julian Lehmann and Katrin Kinzelbach, Interview with David J. Kramer, 10 November 2014
131 European Court of Human Rights, „Case of Ilgar Mammadov v. Azerbaijan, Application no. 15172/13” (22 May
2014), accessed July 2016, http://hudoc.echr.coe.int/eng?i=001-144124#{%22itemid%22:[%22001-144124%22]}
132 Ibid.
133 Ibid.
126
127
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International Attention and Reasons for Lacking Release
Mammadov’s detention sparked reaction by international NGO, legislative and executive actors:
Amnesty International on 6 February 2013 criticized charges against Mammadov as “trumped up”
and called for Mammadov’s release.134 The NGO Article 19 called the arrest part of a “wave of
repressive measures in the country that have sought to silence free speech.”135 Council of Europe
Secretary General expressed his “disturbance” in a statement on 8 February 2013. On the
following day, the EU High Representative Catherine Ashton issued a joint statement with the
European Commissioner for Enlargement and Neighbourhood Policy, Štefan Füle. On 14 February
2013, the EU issued another statement at the OSCE Permanent Council, calling for Mammadov’s
immediate release.136 Finally, on 13 June, the EU Parliament adopted a resolution,, in which it
called for an immediate and unconditional release of Mammadov and called on the European
External Action Service to link the accession process to the progress on human rights compliance
(“more for more“).137 Thus, the potential costs associated with the continued detention of
Mammadov for the Azerbaijani regime were rising. Indeed, on the face of it, these costs were as
high as the threats to strip Azerbaijan of its voting rights at PACE mid-2005.
The stakes for Azerbaijan grew higher as on 22 May 2014, the European Court of Human
Rights ruled that in detaining and sentencing Mammadov, Azerbaijan had violated multiple
articles of the European Convention of Human Rights. According to the court, Mammadov’s
detention was unlawful, the trial had been unfair, and the actual purpose of the detention was “to
silence or punish the applicant for criticizing the Government and attempting to disseminate what
he believed was the true information that the Government were trying to hide.”’138 Given that
Azerbaijani officials had contested PACE monitoring with the argument that only the European
Court of Human Rights was competent to determine legitimacy of detention, the court’s 2014
judgments stripped the Azeri government of its main line of justification. Secretary General
Jagland met with President Aliyev and senior members of government after the judgment to
request Mammadov’s release.139
Despite these high stakes and efforts, contrasting Fatullayev, Mammadov remains in jail to
this date. Several characteristics of Mammadov’s case differentiate it from those of other
individuals released during PACE monitoring. First, he was detained at a time when Azerbaijani
authorities were more confident that public condemnation would not lead to further costs than in
Hajili’s case. Following the PACE debate in January 2013, the issue-specific monitoring at the
Council of Europe had effectively ended despite new cases of political imprisonment occurring
and key Western countries’ relations with Azerbaijan not deteriorating. Second, Mammadov’s
political ambitions set him apart from other prisoners; the detention effectively curtailed his
134 Amnesty International, “Azerbaijan: Opposition candidate arrested ahead of presidential elections” (6 February
2013), accessed July 2016, https://www.amnesty.org/en/latest/news/2013/02/azerbaijan-stop-score-settlingarrests/
135 Article 19, “Azerbaijan: The crackdown on free speech continues” (6 March 2013), accessed July 2016,
https://www.article19.org/resources.php/resource/3636/en/azerbaijan:--the-crackdown-on-free-speech-continues
136 European Union, OSCE Permanent Council Nr 94, “PC.DEL/100/13 - EU statement on the Human Rights situation
in Azerbaijan”(14 February 2013), accessed July 2016,
http://eeas.europa.eu/delegations/vienna/documents/eu_osce/permanent_council/2013/pc_941_eu_on_hr_in_azerb
aijan.pdf
137 European Parliament, “Azerbaijan: Case of Ilgar Mammadov“ (13 June 2013), accessed July 2016,
http://www.europarl.europa.eu/sides/getDoc.do?type=TA&language=EN&reference=P7-TA-2013-285
138 European Court of Human Rights, „Case of Ilgar Mammadov v. Azerbaijan, Application no. 15172/13” (22 May
2014), accessed July 2016
139 Council of Europe is not blind to Azerbaijan’s rights violations, Thorbjørn Jagland, Politico, 22 May 2014
http://www.politico.eu/article/council-of-europe-is-not-blind-to-azerbaijans-violations/
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intentions to run for president and demobilized him politically. In that regard, there are some
similarities to the “historic cases” of political imprisonment, in particular to those independent
expert’s pilot cases that Azerbaijan was reluctant to release. Individuals potentially posing a
danger to the regime’s power grip were released later than others were.
5. Conclusion
The monitoring of political imprisonment in Azerbaijan indicates that international pressure
worked only when concessions present real benefits for the regime, either to secure positive
outcomes or to prevent negative repercussions.
The Council of Europe’s monitoring of political imprisonment in Azerbaijan morphed from a
relatively cooperative process in 2001-2005 to an increasingly adversarial one. As the Azerbaijani
government gained experience and tested how far it could go without incurring serious costs, the
relationship between the CoE and Azerbaijan changed. At the first monitoring mandate of the
Council of Europe’s Parliamentary Assembly, the Azerbaijani government expressly welcomed the
fact that the monitoring was a political, rather than a more lengthy and formal legal process.
Acknowledging clear red lines drawn by the Parliamentary Assembly, whose majority was critical
of Azerbaijan, Azerbaijan cooperated with the independent experts and continuously released
alleged political prisoners, likely in exchange for negotiations on the wording of the assembly’s
resolutions.
There is no primary evidence across cases whether releases during the first and second
mandate occurred because of the Council of Europe’s monitoring process. A member of the
Azerbaijani delegation claimed that sixty-five percent of those who were on the list of the 716
cases compiled by the independent experts in 2001 were released because the Azerbaijani
criminal code foresees an automatic release after two thirds or three quarters of a prison sentence
are served.140 However, because it can be a case characteristic of political imprisonment that this
principle is not applied for discriminatory, political reasons, the official’s explanation is not as
conclusive as it seems – the individuals may well have had to serve their entire sentence had the
Council of Europe not monitored the situation. Hence, the official’s statement does raise the
question of whether the monitoring turned into a “business model” in which releases were sold
by the Azerbaijani authorities as costly concessions, more costly than they were in fact.
The Council of Europe’s monitoring lost momentum the moment that Azerbaijan’s
membership was no longer at risk, that is after mid-2005. Azerbaijani authorities demonstrated a
steep learning curve by first taking charge of the issue with a domestic (inactive) task force, by
advocating for generic human rights monitoring rather than issue-specific monitoring, and by
questioning the notion of political imprisonment as invalid given the lack of a universally agreed
legal definition. Domestically, it seems there was a rise in the use of fabricated charges, such as
drug possession and tax evasion, which made it harder for international observers to address new
cases that were less evident political than the “historic” political cases.
Monitoring at PACE also allowed Council of Europe States to engage in releases while keeping
their own costs low. Throughout the monitoring process, individual state action remained weak.
As PACE delegates were unwilling to uphold the political pressure created during the first and
second mandates, and the member states’ governments were interested in good relations with
Azerbaijan during the years of the economic boom spurred by high energy prices, the number of
releases went down. Correspondingly, there also appears to have been a link between the
140
PACE 2005 Ordinary Session (Third part), Twenty-first Sitting, Wednesday 22 June 2005 at 3.30 p.m.
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escalating imprisonment of opposition activists and the failed resolution of early 2013. As
illustrated by the case of Ilgar Mammadov, the Azerbaijani government lost restraint and in this
situation, even a concerted amount of statements by the Council of Europe Secretary General, the
EU, the EU parliament made no difference. In the case of Azerbaijan, public shaming started to
become cheap when the Azerbaijani authorities no longer anticipated costs or consequences for
non-compliance beyond what they could control and were willing to accept. Beyond the
reputational costs, the analyzed cases show that the prisoners’ political mobilization potential and
ambitions, as well as intra-government turf war appear to play a role in the cost-benefit calculus
of the government.
In 2016, Azerbaijani authorities unexpectedly released a series of alleged political prisoners.
While this paper focused on Council of Europe Monitoring until the end of 2015, further research
is needed assess how the findings in this paper relate to these latest releases.
6. Bibliography
6.1.
Monographies and Journal Articles
Thomas Carothers, “The End of the Transition Paradigm,”Journal of Democracy 13, no. 1 (January 2002), 5–21.
Svante Cornell, “Democratization Falters in Azerbaijan” 12:2 Journal of Democracy (2001).
Hillary Rodham Clinton (2014), Hard Choices, Simon and Schuster (2015).
Farid Guliyev, Post-Soviet Azerbaijan: Transition to Sultanistic Semiauthoritarianism? An Attempt at
Conceptualization, Demokratizatsiya: The Journal of Post-Soviet Democratization, Vol. 13, No. 3, pp. 393-435.
Jonathan Wheatley and Christoph Zürcher, “On the Origin and Consolidation of Hybrid Regimes: The State of
Democracy in the Caucasus”, 4:1 Taiwan Journal of Democracy (2008).
6.2.
Council of Europe Documents
6.2.1
Parliamentary Assembly of the Council of Europe
-
Doc. 13079, Report: “The follow-up to the issue of political prisoners in Azerbaijan”, 14 December 2012.
Verbatim record of Thirty-third Sitting, Wednesday 3 October 2012 at 3.30 p.m.
-
Doc. 13011, Report “The definition of political prisoner”, 05 September 2012.
-
Doc. 12587: Criteria for the definition of a political prisoner”, 13 April 2011.
-
Doc. 13484: Azerbaijan’s Chairmanship of the Council of Europe: What follow-up on respect for human
rights?”, 08 April 2014.
-
Parliamentary Assembly, Resolution 1750 (2010), The functioning of democratic institutions in Azerbaijan,
-
Report by Thomas Hammarberg, Commissioner for Human Rights of the Council of Europe, following his
visit to Azerbaijan from 1 to 5 March 2010, CommDH(2010)21, 29 June 2010.
-
“Honouring of obligations and commitments by Azerbaijan”, Information note by the co-rapporteurs on their
fact-finding visit to Baku (8-10 April 2009), AS/Mon(2009)19
-
Doc. 11468, “The follow-up to the issue of political prisoners in Azerbaijan”, 18 December 2007
-
Doc. 10564, Follow-up to Resolution 1359 (2004) on political prisoners in Azerbaijan, 31 May 2005.
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DRAFT – DO NOT CITE OR CIRCULATE, PLEASE
-
Doc. 10473 “Follow-up to Resolution 1359 (2004) on political prisoners in Azerbaijan” 14 March 2005.
-
“Cases of alleged political prisoners in Azerbaijan”, Secretary General’s interim report concerning his
Independent Experts’ second mandate”, SG/Inf (2004)1, 9 January 2004.
-
Resolution 1359 “Political prisoners in Azerbaijan“ (2004).
-
Resolution 1358 “Functioning of democratic institutions in Azerbaijan” (2004).
-
Doc. 10026, Report “Political prisoners in Azerbaijan” 12 January 2004.
-
Doc. 9310, Political prisoners in Azerbaijan, Report, 11 January 2002.
-
Opinion 222 (2000) Text adopted by the Assembly on 28 June 2000 (21st Sitting).
6.2.2. Others
“Council of Europe leaves Azerbaijan human rights working group” (7 October 2015)
European Court of Human Rights, Fatullayev v. Azerbaijan, Application No.40984/07, 22 April 2010.
European Court of Human Rights, Ilgar Mammadov v. Azerbaijan, Application no. 15172/13, 22 May 2014.
European Court of Human Rights, Huseyn And Others v. Azerbaijan, Applications nos. 35485/05, 45553/05, 35680/05
and 36085/05”, 26 October 2014.
“Observations on Azerbaijan: Freedom of expression, assembly and association deteriorating in Azerbaijan” (23 April
2014)
Report by the Commissioner for Human Rights Mr. Thomas Hammerberg on his visit to Azerbaijan, 3-7 September
2007, CommDH(2008)2, 20 February 2008
6.3.
Other Governments Sources
European Union, EU statement on new sentencing of Azerbaijani journalist, OSCE Permanent Council No. 822, Vienna,
8 July 2010, PC.DEL/740/10
European Union, OSCE Permanent Council Nr 94, “PC.DEL/100/13 - EU statement on the Human Rights situation in
Azerbaijan”, 14 February 2013.
European Parliament, “Azerbaijan: Case of Ilgar Mammadov“, (2013/2668(RSP)), 13 June 2013.
OSCE, “Election in Azerbaijan undermined by limitations on fundamental freedoms, lack of level playing field and
significant problems on election day, international observers say” (2013)
OSCE/ODIHR Election Observation Mission Report, “Republic of Azerbaijan, Presidential Election 15 October 2003”,
(2003).
OSCE/ODIHR Election Observation Mission Final Report, “Republic of Azerbaijan, Parliamentary Elections 6
November 2005”(2006).
US Department of State, Bureau of Democracy, Human Rights Country Reports on Human Rights Practices, and Labor
2001, 2002, 2003, 2004, 2005, 2006, 2007, 2008, 2009, 2010, 2011, 2012, 2013, 2014, 2015.
US embassy cable - 10USOSCE31, OSCE weekly highlights: January 25-29, 2010, 3 February 2010.
US embassy cable 08BAKU219, Azadliq newspaper editor sentenced to four years' imprisonment, 7 March 2008.
US embassy cable 07BAKU1140, COE Human Rights Commissioner Thomas Hammarberg's visit to Baku, 17
September 2007.
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US embassy cable - 07BAKU886, Emergency situations minister heydarov's rising influence (c-re7-00784), 12 July
2007.
US embassy cable 07BAKU758, "Friends of Azerbaijan" demarche presidential chief of staff on media freedom, 18 June
2007.
6.4.
NGO Reports and Press Releases
Amnesty International, “Azerbaijan: Opposition candidate arrested ahead of presidential elections” (6 February 2013)
Amnesty International, “The Spring that never blossomed” (2011)
Amnesty International USA et al, Joint Statement: Azerbaijan: Quash conviction of journalist Khadija Ismayilova,
Amnesty International, “Imprisoned Azerbaijani journalist faces new jail term” (6 July 2010)
Amnesty International, Azerbaijan: Critical voices again silenced by libel laws, EUR 55/008/2007 (Public)
Article 19, “Azerbaijan: The crackdown on free speech continues” (6 March 2013)
Eastern Partnership Civil Society Forum, “The List of Political Prisoners in Azerbaijan” (2014).
European Stability Initiative, “A Portrait of Deception. Monitoring Azerbaijan or why Pedro Agramunt should resign”
(22 January 2013).
European Stability Initiative, “Caviar Diplomacy, How Azerbaijan silenced the Council of Europe” (2012).
European Stability Initiative, “Generation Facebook in Baku. Adnan, Emin and the Future of Dissent in Azerbaijan”
(2011).
Freedom House, “A rare mass protest in Azerbaijan: Injured Protesters and a Sacked Governor” (2012)
Eastern Partnership Civil Society Forum, “The List of Political Prisoners in Azerbaijan” (2015).
Human Rights Watch, “Azerbaijan: Authorities Targeting Youth Activists” (2013),
Human Rights Watch, “Tightening the Screws” (2013)
Human Rights Watch, “Azerbaijan: Government Cracks Down to Prevent Protests” (2011)
Human Rights Watch, “Azerbaijan: Activists Jailed Ahead of Planned Protest “ (2011)
Human Rights Watch, “World Report 2005 – Azerbaijan” (2005)
Human Rights Watch, “Azerbaijan: Opposition Leaders Sentenced After Flawed Trial” (2004)
Human Rights Watch, “Azerbaijan: Government Launches Crackdown” (2003)
International Crisis Group, “Azerbaijan: Vulnerable Stability, Europe Report N°207 “ (2010).
Reporters Without Borders, Azerbaijan: Seven journalists to spend National Press Day in Prison, 20 July 2007.
6.5.
Newspaper Articles
Shahin Abbasov, „Azerbaijan: Is Fatullayev’s Release Related to Eurovision Preparation?, Eurasianet, 27 May 2011.
Ellen Barry, “Police in Azerbaijan Arrest Antigovernment Protesters”, New York Times, 12 March 2011
Khadija Ismayilova, “Azerbaijan: Opposition Protest Results in Wave of Arrests”, Eurasianet, 4 April 2011 (2011).
Thorbjørn Jagland, Council of Europe is not blind to Azerbaijan’s rights violations, Politico, 22 May 2014.
25
DRAFT – DO NOT CITE OR CIRCULATE, PLEASE
Azerbaijani President Amnesties 66 Inmates, Including Political Prisoners” Radio Free Europe/Radio Liberty, “ 22
June 2012.
“Council Of Europe Rights Official Criticizes Azerbaijan, Radio Free Europe”, 30 June 2010.
“British MP Who Challenged Aliyev Says 'The Reputation Of The Council Of Europe Is At Stake'”, Radio Azadlyg, 7 July
2014.
“Jailed Azerbaijani Journalist Released After Four Years In Prison”, Radio Free Europe/ Radio Liberty, 26 May 2011
6.6.
Others
CIRI Human Rights Dataset, David L. Cingranelli, David L. Richards, and K. Chad Clay, Dataset Version 2014.04.14.
Danish Immigration Service, Report on fact-finding mission to Azerbaijan: Former OPON forces in Azerbaijan, etc. (27
January to 1 February 2002), 11 November 2002
7. Annex
Table: Early Releases 2001-2015
(Sources: US State Department annual Country Reports on Human Rights Practices; Council of Europe Parliamentary
Assembly, Doc. 10564, Follow-up to Resolution 1359 (2004) on political prisoners in Azerbaijan, 31 May 2005)
Year
Prisoners
released
Of whom
considered
political
prisoners
2001
2002-2004
Considered as
political prisoners by
independent experts
17
45
2004
870
60
2005
215
87
2006
199
8
2007
9219
16
2008
155
11
2009
9089
2
2010
62
1
2011
No data
4
2012
155
15
2013
2153
3
2014
171
3
2015
158
14
26
Of whom
released
until end of
mandate
6
32
Released until
mid-2004
11
N/A