Lexploria

Information Note on the Court’s case-law 255

October 2021

Democracy and Human Rights Resource Centre and Mustafayev v. Azerbaijan - 74288/14 and 64568/16

Judgment 14.10.2021 [Section V]

Article 18

Restrictions for unauthorised purposes

Freezing of bank accounts of a human rights defender and his NGO and imposition of travel bans for the purpose of punishing them for, and impeding, their work: violation

Article 2 of Protocol No. 4

Article 2 para. 2 of Protocol No. 4

Freedom to leave a country

Imposition of a travel ban in connection with an alleged tax debt, without any measures taken to collect it: violation

Facts – The individual applicant is a human rights lawyer in Azerbaijan and the founder and chairman of the applicant association, a non-governmental organisation specialising in legal education and protection of human rights. The applicants complained about the freezing of their bank accounts and the imposition of travel bans on the applicant.

Law

Article 1 of Protocol No. 1: The freezing of the applicants’ bank accounts, which had to be regarded as a measure of control of the use of property, had not been lawful as the applicants did not belong to the categories of persons to whom an attachment measure could be applied under the domestic law; the applicants had not been charged with any criminal offence and it did not appear from the case file that they could be “ a person who could materially liable” for the criminal actions of another accused person.

Conclusion: violation (unanimously)

Article 2 of Protocol No. 4:

(a) Travel ban imposed by the prosecuting authorities – The impugned travel bans had been imposed within the framework of criminal proceedings in connection with alleged irregularities in the financial activities of a number of non-governmental organisations. However, the applicants’ names did not figure in the relevant decision instituting those proceedings. In Mursaliyev and Others v. Azerbaijan the Court had found that the imposition of a travel ban on the applicants, who had been only witnesses in criminal proceedings, in the absence of any judicial decision had not been “in accordance with law”. That finding was equally applicable to the present case.

Conclusion: violation (unanimously)

(b) Judicially imposed travel ban – Another travel ban had been imposed on the applicant in connection with the tax dispute between the applicant association and the tax authorities. Such a measure could be imposed under domestic law. However, the respondent Government had not demonstrated that the impugned measure had pursued any of the legitimate aims set out in Article 2 § 3 of Protocol No. 4. More specifically, neither the tax authorities nor the domestic courts had sought to collect the tax debt in question without imposing a travel ban. In particular, they had not considered deducting the alleged tax debt from the money that had been available on the applicants’ bank accounts or seizing any other assets owned by them despite the applicant’s explicit request in that regard in the court proceedings. Indeed, the Government had not contested the applicant’s submission that the sum allegedly due had been available on the bank accounts. The tax authorities and the domestic courts had also failed to put forward any argument how imposing the travel ban had been necessary for the collection of the tax debt. In that connection, the Court reiterated that restriction on the right to leave one’s country on grounds of unpaid debt could only be justified as long as it served its aim, namely, recovering the debt.

Conclusion: violation (unanimously)

Article 18 in conjunction with Article 1 of Protocol No. 1 in respect of both applicants and Article 2 of Protocol No. 4 in respect of the applicant:

(a) Applicability – Both the right to protection of property and the right to freedom of movement were qualified rights subject to restrictions permitted under the Convention, thus Article 18 was applicable in the present case.

(b) Merits – That complaint constituted a fundamental aspect of the case which had not been addressed and merited a separate examination. In view of the Court’s findings under Article 1 of Protocol No. 1 and Article 2 of Protocol No. 4 regarding the lack of legal basis for the impugned restrictions or a legitimate aim, no issue arose with respect to the plurality of purposes. Notwithstanding, the authorities’ actions had been actually driven by an ulterior purpose, namely, to punish the applicants for their activities in the area of human rights and to prevent them from continuing those activities. Proof of this ulterior purpose resulted from a juxtaposition of the relevant case-specific facts with contextual factors. In particular:

(i) The applicant association was specialised in protection of human rights and the applicant was a lawyer who has represented applicants in a large number of cases before the Court. The Court was particularly struck by the fact that, at the request of the prosecuting authorities, the domestic court had adopted, without relying on any legal basis, an attachment order in respect of an amount of money transferred from the Council of Europe to the applicant as legal aid on the grounds that the amount in question had constituted the object of a criminal offence and had been used “as its instrument”. This fact pointed to the possibility that the attachment of the applicant’s bank accounts had been used as a measure preventing him from exercising his professional legal activity.

(ii) The restriction of the applicants’ rights within the framework of a criminal case in which they had not been charged with any criminal offence, had not only been devoid of any legal basis, but had also been applied in a manner capable of paralysing their work. Neither the domestic courts nor the Government had given any explanation why the attachment orders had not been limited to specific amounts but had been applied in respect of all the applicants’ bank accounts, preventing them practically from conducting their professional activities. They had also failed to put forward legitimate reasons for the imposition of the travel bans on the applicant.

(iii) The applicants’ situation had to be viewed against the backdrop of the pattern of arbitrary arrest and detention of government critics, civil society activists and human rights defenders in the respondent State. In this connection, the Court referred to its findings in Aliyev v. Azerbaijan . The reports and opinions made by various international human rights instances about the use of freezing of bank accounts and imposition of travel bans on the civil society activists in this context could also not be overlooked.

Conclusion: violation (unanimously)

The Court further found, unanimously, a violation of Article 13 in conjunction with Article 1 of Protocol No. 1 as the applicants had not had an effective remedy in practice to contest the interference with their property rights.

Article 46: It was left to the Committee of Ministers to supervise, on the basis of the information provided by the respondent State and with due regard to the applicants’ evolving situation, the adoption of measures aimed, among others, at eliminating any impediment to the exercise of their activities. Those measures should be feasible, timely, adequate and sufficient to ensure the maximum possible reparation for the violations found, and they should put the applicants, as far as possible, in the position in which they had been before the freezing of their bank accounts and the imposition of the travel bans on the applicant.

Article 41: EUR 8,000 to the applicant association and EUR 15,000 to the applicant in respect of both pecuniary and non-pecuniary damage.

(See also Aliyev v. Azerbaijan , 68762/14 and 71200/14, 20 September 2018, Legal Summary ; Mursaliyev and Others v. Azerbaijan , 66650/13 et al, 13 December 2018, Legal Summary )

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