Executive summary

  Despite the fact that the Azerbaijani Constitution guarantees the balance of powers within the government’s scope of authority, the practical application of these provisions raises concern. Several civil society activists and international organizations, such as the Helsinki Foundation for Human Rights, Netherlands Helsinki Committee and Human Rights Watch, have highlighted the lack of independence of the prosecutor and judiciary from the executive branch in Azerbaijan. The government engages prosecutors and judges to discredit critical voices and uses the criminal justice system as a tool to persecute human rights defenders, journalists and NGOs. Reports of trial proceedings, during which the human rights defenders Intigam Aliyev, Rasul Jafarov, Leyla Yunus and her husband Arif Yunus, as well as the investigative journalist Khadija Ismayilova were tried and sentenced to prison, show that the prosecution of these human rights defenders lacked evidence to arrest, detain and substantiate the charges against them[1] . Courts usually embrace the prosecution’s (written) submissions, which, according to the ECtHR, limits the judiciary’s role to one of mere automatic endorsement of the prosecution’s requests[2] .

 

According to international standards, such as the UN Guidelines on the Role of Prosecutors, public prosecutors must enjoy independence to exercise their duties. Nevertheless, the strict hierarchical relations within the Azerbaijani public prosecution service leave little space for independent decision-making of lower-rank prosecutors. Candidates must serve at least five years with the prosecutor general’s office before being appointed as a public prosecutor. This also prevents other legal professionals, such as (recently graduated) lawyers, from entering the prosecution service. Furthermore, neither the selection procedure of medium and senior prosecutors nor the dismissal process of prosecutors is merit-based. In this context, the executive branch exerts significant control over public prosecutors. First, the government has the power to appoint the prosecutor general, with the consent of parliament. Second, reasons for being removed from the profession are overly broad, which enables political authorities to arbitrarily dismiss prosecutors if they oppose instructions from their superiors or government policies in general. Another concern is the periodic report of the prosecutor general, which catalogues the topics that are discussed with the parliament and government but is kept secret.

 

The Azerbaijani judiciary is also perceived as totally subservient to the executive branch. Although constitutional safeguards for judicial independence exist, according to which judges are bound only by Azerbaijan’s constitution and laws, in practice there are strong links between the judiciary and the government. The selection of judges, for instance, is administered by the Judicial Legal Council. The majority of its members is appointed by the government and the Council is presided over by the Minister of Justice, which gives the government significant control over the entire judiciary. Of serious concern is in particular that when judges are appointed for the first time they only serve for a (lengthy) probation period of three years, which is contrary to international standards and criticized by the European Commission for Democracy through Law (“Venice Commission”), as this makes the judges more likely to align with the viewpoints of their superiors and the government to get re-appointed. The independence of judges in Azerbaijan is further weakened by the impeachment process of judges. The judges of the Constitutional Court are not directly selected by a purely judicial, independent and impartial body but by the President of the Republic.

 

Furthermore, the Azerbaijani law and the legal culture of the judiciary and prosecution enable the executive branch to use the justice system to systematically persecute human rights defenders. The European Court of Human Rights, for instance, condemned this practice as clear violation of Art. 6 of the ECHR.

 

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Footnotes

 

[1] The Report on the trial observations is available at, for instance, NHC, ‘News ’, accessed 12 August 2016.

[2] Rasul Jafarov v Azerbaijan App no 69981/14 (ECHR, 17 March 2016); Mammadov v Azerbaijan App no 15172/13 (ECHR, 22 May 2014).

The Functioning of the Judicial System in Azerbaijan and its Impact on the Right to a Fair Trial of Human Rights Defenders