Challenges to Freedom of Movement in Azerbaijan CAP Paper 210, August 2018

Tural Aghayev is an Azerbaijani human rights lawyer. He ing such restrictions will be dis- received a Bachelor’s degree from Baku State University cussed.

Law School in 2008. He subsequently studied at the The second part will focus on in- Europa-Institut at Saarland University in Germany, ternational institutions that re- earning a Master’s degree in 2015. This research and a ceive complaints regarding vio- subsequent paper were written as part of a fellowship at lations of the right to freedom of movement. This section will focus the CEELI Institute in Prague granted to several young, on the increasingly relevant and talented human rights lawyers from Azerbaijan over the effective ICCPR and its semi-ju- past 2 years. dicial body, the United Nations Human Rights Committee. Rel- reedom of movement is a certain dictatorial, authoritarian evant hearings of the latter body fundamental right. It en- governments take full advantage will be presented. Fcompasses the right to of their ability to abuse this fact. move from one place to another In the final part, the role of the within the territory of a coun- Freedom of movement is one European Convention on Human try, the right to leave a country of the main issues facing pres- Rights (ECHR) and its judicial (including one’s state of origin), ent-day Azerbaijan. According 1 body, the European Court of Hu- and the right to return to it. to international and domestic man Rights (ECtHR), as it per- This right is enshrined in inter- reports, the Azerbaijani govern- tains to the protection of the right national treaties relating to civil ment has been using restrictions to freedom of movement will be and political rights, including the on movement as a tool of political investigated. The case law of the Universal Declaration of Human pressure against journalists, poli- 2 Strasbourg court, an indispens- Rights, the International Cove- ticians, and civil society activists able part of jurisprudence under nant on Civil and Political Rights since the 2000s. These pressures 3 the ECHR, will be a main refer- (ICCPR), the International Con- allow the government to control ence point. The procedure for vention on the Protection of the opposition figures and cut off bringing a case before the ECtHR Rights of All Migrant Workers their direct relations with the in- will also be explored in detail. and Members of Their Families,4 ternational community. the Convention on the Rights of 5 This research is intended to ex- Persons with Disabilities, and In the first part of this paper, the plore the issues around freedom various regional treaties, includ- current situation regarding the of movement, looking in turn at ing the European Convention restriction of movement in Azer- 6 legal procedures for addressing on Human Rights, the African baijan and the legal basis for these violations at domestic, regional, Charter on Human and Peoples’ restrictions will be reviewed. The 7 and international level. It will Rights, etc. This right is also pro- persons who are subject to travel hopefully be of use to all those vided for in state constitutions. bans, the purported reasons for who engage with issues pertain- Notably, however, this right is not these bans, and the government’s ing to freedom of movement, absolute: it can be restricted, and alleged motivations for impos- including human rights lawyers

CAP Fellows Paper 210 1 and students of human rights. and journalists. …almost all Meydan TV In the Special Rapporteur of the journalists in Baku face travel bans.10 Freedom of Movement in United Nations Human Rights Azerbaijan Committee’s report on his mis- Similarly, the U.S.-based sion to Azerbaijan, the freedom of Freedom House mentioned travel The Freedom of Movement movement situation is described bans imposed by the government Situation in the Country as follows: of Azerbaijan in its 2017 Report:

The right to freedom of …During the visit, the Special Rapporteur …Journalists are threatened, harassed, movement is a problematic received many reports and testimonies intimidated, and assaulted with pointing to the intensified crackdown impunity, and many have been detained issue in Azerbaijan. As stated on and criminalization of civil society or imprisoned on fabricated charges. above, since this right is not in Azerbaijan. In that context, the An increasing number of journalists absolute under international authorities have targeted defenders, face travel bans. …The government treaties, states are allowed to journalists, lawyers and grassroots has increasingly restricted freedom of activists through the use of politically impose certain restrictions on it. movement, particularly foreign travel, motivated criminal prosecutions, arrests, for opposition politicians, journalists, Theoretically, these restrictions imprisonment and travel bans. … In late and civil society activists. Courts denied must be compatible with the 2015 and early 2016, the Government several appeals by such individuals freedom of movement provisions conditionally released or pardoned a against their travel bans in 2016.11 in any international treaties number of human rights defenders. However, none of those released had their In its 2016 report, the U.S. ratified by a given country (in convictions vacated and several still face this case Azerbaijan). However, travel restrictions. …Many human rights State Department referred to certain parts of these provisions defenders and dozens of NGOs, their travel bans as one of the most are abused by numerous states, leaders and employees and their families concerning issues in Azerbaijan: have been subjected to administrative Azerbaijan among them. Reports and criminal prosecution, including on Azerbaijan prepared by ...authorities conducted numerous arbitrary detention, the seizure of their criminal investigations into the activities international human rights assets and bank accounts, travel bans of independent organizations, froze organizations and state and and enormous fines and tax penalties. bank accounts, and harassed local staff, interstate institutions (Freedom …The Special Rapporteur recommends including incarcerating and placing that the Government of Azerbaijan… travel bans on some NGO leaders.... House, Amnesty International, release all human rights defenders in the U.S. State Department, the The law provides for freedom of detention, drop criminal charges against internal movement, foreign travel, UN Human Rights Committee, NGO leaders and employees, rescind emigration, and repatriation, and the etc.) highlight numerous issues travel bans and unblock their bank government generally respected these accounts, in line with the resolutions and compromising Azerbaijan’s rights; however, the government limited recommendations of international and freedom of movement for an increasing commitment to freedom of 9 regional mechanisms. number of activists and journalists. movement, particularly travel ...The number of activists and journalists bans. Where other authoritarian In its 2016 World Report, Human whom the authorities prevented from regimes banish troublemakers Rights Watch describes travel traveling outside the country increased from the country, Azerbaijan bans as one of Azerbaijan’s chief compared to the previous year. Examples apparently prefers to keep them included Popular Front Party chairman methods of cracking down on Ali Kerimli (since 2006), blogger nearby, preventing dissidents political activists and journalists: Mehman Huseynov, investigative and critical journalists from journalist Khadija Ismayilova, lawyers leaving the country. Human The government’s unrelenting Intigam Aliyev and Asabali Mustafayev, rights defenders are aware that crackdown decimated independent opposition REAL members Natig Jafarli and Azer Gasimli, Emin Milli’s brother- in order to control and put nongovernmental organizations (NGOs) and media. Courts sentenced leading in-law Nazim Agabeyov, and at least 15 pressure on troublesome activists human rights defenders, political freelance journalists who filed material and journalists, the Azerbaijani activists, and journalists to long prison with Meydan TV.12 government has begun to terms in politically motivated, unfair implement travel bans, finding trials. Dozens more face harassment, Domestic human rights have been imprisoned, are under organizations, too, cover this a more effective manner criminal investigation, face travel bans, of silencing opposition than or have fled. The authorities denied entry challenges to freedom of arrests.8 to international human rights monitors movement in their reports. In its

CAP Fellows Paper 210 2 report on freedom of expression was not ensured, nor was he business), and 308.2 (abuse of in Azerbaijan, the Institute for issued a passport. power) of the Criminal Code. Reporters’ Freedom and Safety According to the lawyer who (IRFS), an Azerbaijani NGO, Even more politicians have been defended these journalists before writes: subjected to travel bans in the the domestic authorities, the past 3-4 years, during which names of at least 15 journalists, In a country where space for freedom time the civil and political rights photo reporters, columnists, of expression is narrowing, journalists situation in the country has editors, etc. cooperating with are facing a range of obstacles to their legitimate work, such as travel bans, deteriorated dramatically. On Meydan TV in Baku and abroad police interrogations and even cyber August 12, 2016, Natig Jafarli, are mentioned in the criminal attacks. In the light of these findings, to the executive secretary of the case.18 Almost all those who live fulfil its international commitments and opposition movement Republican in Azerbaijan have faced travel basic responsibilities to its own citizens, the government of Azerbaijan must... Alternative (REAL), was arrested bans. lift travel restrictions hindering the in relation to the criminal case professional activities of journalist and opened against NGOs in 2014. Sevinj Vagifgizi, Ayten activists.13 Since his criminal case remains Farhadova, and Izolda ongoing, a travel ban has been Aghayeva, Baku-based Persons Facing Travel Bans imposed on him.16 journalists, worked for Meydan TV at the time in question. On Politicians On September 28, 2016, Azer September 20, 2015, while Gasimli, deputy chairman of returning from Ukraine, they Challenges to freedom of REAL, was turned back at the were told by the Department movement in Azerbaijan date border checkpoint while traveling for Combating Organized Crime back to the early 2000s. After to Georgia. It appeared that he (DCOC) that they had been Azerbaijan ratified the ECHR had been banned from leaving banned from leaving Azerbaijan, and accepted the jurisdiction of the country. He noted that there notwithstanding that they the ECtHR, the first judgment was no criminal case related to were coming to Azerbaijan, regarding Azerbaijan in which him, but observed that he had not going. They were taken to the Court found that freedom of previously been summoned to the Department for Combating movement had been violated was the Serious Crimes Investigation Organized Crime. “At 11am, the Hajibeyli v. Azerbaijan.14 Department of the Prosecutor deputy chief of the investigations General’s Office regarding the department came and said In 2015, the ECtHR delivered case of Natig Jafarli. that we had been brought here its second judgment on freedom because of the criminal case of movement in respect to Journalists against Meydan TV. As we had Azerbaijan. This was the case been called as witnesses in this of Kerimli v. Azerbaijan,15 Around 20 journalists have case, we had been banned from in which the Court also found recently been subjected to travel leaving the country,” said Sevinj a violation of freedom of bans in Azerbaijan, a tactic that Vaqifqizi.19 It appeared that they movement. is used with particular frequency had been placed under a travel against freelance journalists.17 In ban at the behest of the Serious While the Azerbaijani August 2015, the Serious Crimes Crimes Investigation Department government fully implemented Investigation Department of of the Prosecutor General’s Office the judgment of the ECtHR in the the Prosecutor General’s Office (SCIDPGO). The journalists case of Hajibeyli v. Azerbaijan, opened a criminal case against lodged an appeal against the in the second case, in which the Meydan TV, an independent decision with the Nasimi District Court found in favor of politician online media outlet based outside Court. Ali Kerimli, the judgment was Azerbaijan, under Articles not fully implemented: Kerimli’s 213.2.2 (evasion of taxes in a The Nasimi District Court heard right to freedom of movement large amount), 192.2.2 (illegal Sevinj Vaqifqizi’s appeal

CAP Fellows Paper 210 3 and dismissed it, saying that it travel ban had been imposed on Binagadi District Court denied did not qualify for supervisory her. Again, the court case against her request to leave the country. proceedings.20 After the Appellate Meydan TV was the central factor. She appealed this decision, but on Court also dismissed the After all her appeals were rejected August 15, 2016, the Baku Court complaint, she brought the case at the domestic level, Elgunesh of Appeals denied her appeal before the ECtHR. took the case to the ECtHR.23 and upheld the Binagadi District Court’s decision.27 Ismailova then On June 20, 2016, Ayten On June 30, 2015, four Meydan submitted an application to the Ferhadova appealed the TV employees—Natig Javadli, ECtHR. SCIDPGO decision to the Nasimi Shirin Abbasov, Elnur District Court, but her complaint, Mukhtarov, and Ayten Natig Adilov from the Azadliq too, was dismissed. After the Alakbarova—were prevented newspaper, Babek Bekir from complaint was also dismissed by from traveling to Tbilisi. Border Radio Liberty, and others are also the Baku Appellate Court, she guards informed them that they among those facing travel bans. applied to the ECtHR. were under a travel ban, which had apparently been imposed Human Rights Defenders On March 21, 2016, transiting that same day.24 The reasons through Georgia on her way to were the same as for the other Civil society in Azerbaijan has Turkey for educational purposes, journalists who faced a travel seen serious setbacks since Izolda Aghayeva was stopped at ban: the Meydan TV case. 2009. Civil society actors, whose the Georgia-Azerbaijan border.21 activities have increasingly come As it was already clear that the Guler Mehdizade, another into conflict with tightening travel ban was based on the freelance journalist working with government policy, have decision of SCIDPGO, she lodged Meydan TV at the time, received found their rights to freedom a complaint, but it was dismissed her travel ban in July 2015. Again, of expression, assembly, and and the Appellate Court upheld the main factor was Meydan TV association compromised. the decision. The case was taken and her appeals were rejected. High-level government officials to the ECtHR. have used disturbing rhetoric Besides Meydan TV journalists, to disparage human rights Aynur Elgunesh, another Khadija Ismailova, a prominent defenders and declare them freelance journalist, has faced and well-known journalist noted tools of Western influence problems at the border since for her investigative work on bound to undermine the state.28 2014. According to her, on every corruption in Azerbaijan, was During a recent visit, the Special trip she faces delays at passport arrested on December 5, 2014. Rapporteur of the UN Human control as border guards call their On September 1, 2015, she was Rights Committee received many colleagues to check information sentenced to seven-and-a-half reports and testimonies pointing about her. “Every time, they let me years in prison.25 On May 25, to the increasing crackdown cross the border after a long wait 2016, the Azerbaijani Supreme on and criminalization of civil and a series of telephone calls. Court ordered her release, on the society in Azerbaijan. In that During these calls, I was identified condition of probation. The Court context, the authorities have as ‘person number five.’ When I did not drop the indictment targeted defenders, journalists, asked for the reason, they never against her, with the result that lawyers, and activists through answered,” she says.22 She asked she found herself facing three- the use of politically motivated Azerbaijan’s General Prosecutor’s and-a-half years of probation, criminal prosecutions, arrests, Office, the Border Guard, and the a two-year ban on professional imprisonment, and travel Ministry of Internal Affairs for activity, a travel ban, and other bans. They have also used a written explanation, but none restrictions.26 Ismailova lodged administrative detention, on was forthcoming. Finally, on a complaint against the travel what are often seen to be spurious December 6, 2015, en route to ban with the Binagadi District misdemeanor charges of resisting Sweden, she was informed that a Court. On June 28, 2016, the police orders or petty hooliganism,

CAP Fellows Paper 210 4 to intimidate political and social Legal Basis for Freedom of be restricted: media activists.29 Movement in Domestic Law 9.1. A citizen of the Republic of Azerbaijan Intigam Aliyev is a prominent Freedom of movement and (hereinafter referred to as “citizen”) is entitled to free entry into or exit from human rights defender and head restrictions on it are provided the country, by crossing the border of the Legal Education Society, for in several domestic laws. The checkpoints of the country. a human rights organization. As Constitution of Azerbaijan 9.2. No citizen can be deprived of the a human rights lawyer, Aliyev is the primary legal basis for right to enter and exit the country. 9.3. A citizen’s right to exit the country has submitted more than 200 freedom of movement. Article can only be temporarily restricted in the applications to the European 28 of the Constitution reads: following cases: Court of Human Rights on 9.3.1. If the citizen is arrested or if any parliamentary election-rigging I. Everyone has the right to freedom. temporary restriction is imposed on II. The right to freedom can be restricted and abuses of the rights to free him/her in compliance with the Code only as specified by law, by way of of Criminal Procedure of the Republic speech and a fair trial. In 2012, detention, arrest, or imprisonment. of Azerbaijan—until his/her release, Aliyev was awarded the People in III. Everyone legally on the territory of the end date of the restriction, or the Need’s Homo Homini Award in the Republic of Azerbaijan may travel termination of the restriction; without restrictions, choose their place 9.3.2. If the citizen is imprisoned—until recognition of his commitment of residence, and travel abroad. 30 he/she serves the main punishment to defending human rights. On IV. Any citizen of the Republic of defined in the Criminal Code of the August 8 of that year, he was Azerbaijan has the right to return to his/ Republic of Azerbaijan or he/she is arrested; he was subsequently her country whenever he/she so desires. released from the punishment, except for sentenced to seven-and-a-half the case set forth in Article 9.3.4 of this years in prison and a three- Article 148.2 of the Constitution Code; further states that international 9.3.3. If compulsory measures of year ban on holding certain medical nature are applied to him/ positions and conducting specific agreements to which the her in compliance with the Code of activities under Articles 179.3.2 Republic of Azerbaijan is a party Criminal Procedure of the Republic of (misappropriation), 192.2.2 constitute an integral part of Azerbaijan—until the termination of the the country’s legislative system. application of the compulsory measures (illegal business with extraction of medical nature; of large income), 213.2.2 (tax This means that international 9.3.4. If a suspended sentence is imposed evasion), 308 (abuse of official treaties that contain provisions on him/her by charging him/her with the power), and 313 (falsifying data in on freedom of movement can be obligations set forth in the Criminal Code official documents).31 On March referred to as law in domestic of the Republic of Azerbaijan or if s/he legal proceedings. Among such is released on parole—until the end of 28, 2016, the Supreme Court of the probation period or non-served part Azerbaijan ordered his release, international provisions are of the punishment, or until earlier and reducing his prison sentence to Article 12 of the ICCPR and complete termination of the suspended a five-year suspended sentence. Article 2 of Protocol No. 4 to sentence or the charged obligations, the ECHR. respectively; This did, however, come with a 9.3.5. In case of enlistment in limited travel ban. On June 15, 2016, the compulsory military service—until Sumgayit Regional Court granted Admittedly, due to the non- the end of the period of the limited him permission to travel abroad absolute nature of freedom of compulsory military service or until for a period of 10 days,32 but after movement, certain restrictions released from that service in compliance may be imposed on it, provided with the law; that, he was again subjected to 9.3.6. In case of the existence of a court a travel ban, which remains in that such restrictions are decision that has legally entered into force force. enshrined in law. One such temporarily restricting a citizen’s right measure is a restriction on the to leave the country for not executing a right to enter and exit the country, court order given upon the court decision Besides Intigam Aliyev, fellow because of unexcused reasons within a human rights defenders Asabali generally referred to as a travel period defined for voluntary execution— Mustafayev and Annagi ban. Article 9 of the Azerbaijan until the adoption of a decision on Hajibayli are also subject to Migration Code enumerates removal of the restriction; travel restrictions. circumstances under which an 9.3.7. According to international medical individual’s ability to travel might sanitary rules or international agreements to which the Republic of Azerbaijan

CAP Fellows Paper 210 5 is a party, during entry to/exit from Article 163 of the Code of restrictions provided for in this article. countries where prophylactic vaccination Criminal Procedure of the 169.2. The suspect or accused who is is required—until implementation of the under police supervision may not go prophylactic vaccination. Republic of Azerbaijan relates elsewhere or change his permanent or 9.4. Military servicemen serving in to house arrest, which may be temporary address within the boundaries the Military Forces of the Republic imposed on the accused as a of the appropriate settlement without of Azerbaijan and in other military restrictive measure. It includes, the permission of the preliminary unions envisaged by the legislation among other things, restrictions investigator, investigator, prosecutor, (excluding military attaches, military or court. He shall report to the police representatives, and their assistants), on freedom of movement: according to the schedule determined as well as military servicemen in by the police and shall register his compulsory military service, who are 163.1. House arrest is a restrictive presence. With a view to supervising his involved in international military measure which restricts a person’s behavior, the suspect or accused may be trainings, other activities or operations liberties and some other rights by summoned by the police at any time. To beyond the borders of the Republic court decision, without the accused this end, the relevant police officials shall of Azerbaijan relating to anti-terror, being detained on remand or isolated have the right to come to the house of the rescue, and service necessity can exit the completely from society. suspect or accused, even against his will. Republic of Azerbaijan if they receive … official permission from the relevant 163.3. House arrest may be accompanied Freedom of movement and executive authorities. by application of the following measures, 9.5. The right to permanent residence separately or where possible jointly: restrictions on it are discussed abroad of persons allowed to work with 163.3.1. prohibition of leaving one’s in Article 1 of the Law of state secrets can be temporarily restricted home at any time or at certain times; the Republic of Azerbaijan, until the end of the confidentiality which deals with exit from the period (not more than 5 years) of the Freedom of movement of the information with which they have been country, entry into the country, allowed to become acquainted. accused is restricted under and passports: 9.6. Data on citizens whose right to enter Article 165 of the Code of and exit the country is restricted should Criminal Procedure, in a Each citizen of the Azerbaijan Republic be entered on the watch list of “Entry- move referred to as a “restraining (hereinafter “citizen”) has the right, as Exit and Registration” Automated order”: specified by the law, to free exit from Interagency Data-Search System and the country and entry into the country the active status of the data should be through the checkpoints specially changed when relevant grounds are 165.1. A restraining order is a restrictive provided for such purposes. The citizen removed. measure under which the suspect cannot be denied the right of exit from 9.7. If a state of emergency or danger to or accused shall make a written the country nor of entry into the country. human life, health, and freedom occurs undertaking to remain at the disposal This right may be temporarily restricted in any country, the relevant executive of the prosecuting authority, not to go in the following cases and simultaneously authority of the Republic of Azerbaijan elsewhere without its permission, not to postponed in the cases stipulated by will immediately warn the population hide from it, not to engage in criminal clause 4: of the Republic of Azerbaijan and activity, not to impede the investigation recommend that citizens temporarily or court hearing, to attend as required 1) if the citizen has an obligation in refrain from going to that country.33 by the preliminary investigator, force on information containing state or investigator, prosecutor, or court and to military secrets—until such obligation is inform them of any change of address. Under Article 95 of the Code invalidated by a procedure determined 165.2. A restraining order shall be by the legislation of the Republic of of Criminal Procedure, imposed on the suspect or accused by the Azerbaijan; witnesses can be subject to prosecuting authority. 2) if criminal proceedings are initiated restrictions on freedom of against the citizen or he/she has been movement: Article 169 of the same code— convicted—until the cessation of the which discusses so-called police proceedings or expiration of the penalty period, or acquittal, respectively; 95.4. The witness shall fulfill the supervision—also contains 3) when the citizen has been called up for following duties in accordance with this provisions which restrict the military service—until the completion of Code: freedom of movement of the the military service or excusal from it in 95.4.7. to be at the disposal of the accordance with the law; court, not to go elsewhere without the suspect or accused. It reads: 4) Until prophylactic vaccinations have permission of the court or without been given when entering countries notifying the prosecuting authority of his 169.1. Police supervision as a restrictive where preventive inoculations should measure shall entail the application whereabouts; be given according to international to the suspect or accused of the legal

CAP Fellows Paper 210 6 medical sanitary regulations or units may leave the Republic of General Assembly adopted the intergovernmental treaties supported Azerbaijan with the permission Universal Declaration of by the Azerbaijan Republic (and for exit from these countries). of the authorities concerned. Human Rights (UDHR) on Military attachés, military December 10, 1948. This was the Article 84.1 of the Law of representatives, and their first time that states attempted to the Azerbaijan Republic on assistants, as well as military agree on a comprehensive catalog Execution enables the court, personnel conducting special of the rights of the human person 45 upon the request of the bailiff, to tasks outside the country, are in a single document. The 41 impose restrictions on a debtor’s excluded. Declaration spelled out basic civil, right to leave the country on the political, economic, social, and grounds that a debtor has failed Article 25 of the Law of cultural rights to which all human 46 to pay a judgment debt before the the Republic of Azerbaijan beings should be entitled. expiration of the time limit set for on State Secrets contains Over time, the Declaration has voluntary payment.34 provisions that restrict the rights become accepted as including the and freedoms, including the fundamental norms of human Article 231.3 of the Civil freedom of movement, of those rights that everyone should Procedural Code of the Azerbaijan who work with state secrets. respect and protect. Although the Republic describes imposing Their right to leave the country UDHR is not binding, many of its travel restrictions on debtors in can be restricted for a period not provisions have been incorporated 42 detail.35 Article 231.4 contains to exceed five years. into customary international provisions for lodging a complaint law, which is binding on all 47 against the court’s decision.36 Protection Mechanisms at states. In intergovernmental the International Level and diplomatic relations, in Article 23.1.15-3 of the arguments submitted to judicial Tax Code of the Republic The Role of United Nations tribunals, in the actions of of Azerbaijan enables tax Bodies Regarding the intergovernmental organizations, authorities to apply to the Protection of Freedom of and in the writings of legal court with a view to imposing Movement scholars, the provisions of the restrictions on the taxpayer’s UDHR have been accepted and right to leave the country in case As we know, the United Nations confirmed as part of customary 48 of failure to pay debts, interest, (UN) was established for international law. and financial sanctions.37 the purpose of maintaining According to Article 24.0.2- international peace and security, Among other rights and 1, it is the responsibility of developing respect for the fundamental freedoms, the the state tax authorities to lift principle of equal rights and UDHR enshrined the right to restrictions should the grounds self-determination of peoples, freedom of movement. Article for the restrictions be removed.38 and promoting and encouraging 13 of the UDHR relates to this respect for human rights and right: 43 Article 23 of the Law of the fundamental freedoms. The 1. Everyone has the right to freedom of Republic of Azerbaijan on the term “human rights” was mentioned seven times in the UN movement and residence within the Status of Military Personnel borders of each State. restricts the rights and freedoms, Charter, making the promotion 2. Everyone has the right to leave any including freedom of movement, and protection of human rights country, including his own, and to return 49 of military personnel due to a key purpose and guiding to his country. 44 military service.39 They are principle of the Organization. Since the UDHR itself was prohibited from living abroad not binding, a legally binding permanently.40 Servicemen of the The international human rights document that would hold Armed Forces of the Republic of movement was strengthened states responsible for violations Azerbaijan and other military when the United Nations

CAP Fellows Paper 210 7 of human rights and freedoms human rights treaties and other an unlimited audience, and take was required. The creation instruments adopted since the action by a majority vote of the of a system of human rights creation of the United Nations.54 members of the UN General 56 protection required: (a) the Assembly. These bodies include conceptualization of a program; There are two Optional Protocols the Human Rights Council (b) the definition of human rights; to the Covenant. The First and its subsidiaries, including (c) the creation of compulsory Optional Protocol, which the Universal Periodic norms; and (d) control systems entered into force on the same date Review Working Group, the for the implementation and as the Covenant itself (March 23, Advisory Committee, Special monitoring of human rights in 1976), establishes an individual Procedures of the Human political and legal terms.50 Thus, complaints mechanism, allowing Rights Council, and the Human on the basis of the UDHR, two individuals to complain to the Rights Council Complaint 57 main binding instruments—the Human Rights Committee about Procedure. Treaty-based International Covenant on violations of the Covenant. bodies are established based Civil and Political Rights and This has led to the creation on the provisions of a specific the International Covenant on of a complex jurisprudence legal instrument and have more Economic, Social, and Cultural on the interpretation and narrow mandates. The set of Rights—were drafted and implementation of the Covenant. requirements codified in the legal submitted to the UN General instrument applies only to those 58 Assembly for discussion in 1954. The Second Optional countries that have ratified it. The two documents were adopted Protocol, which was adopted Treaty-based bodies include the in 1966 and entered into force in in 1989 and entered into force Human Rights Committee 1976.51 Article 12 of the ICCPR on July 11, 1991, abolishes the (HRC), the Committee on was devoted to the right to death penalty except for the most Economic, Social and Cultural freedom of movement. It reads: serious crimes of a military nature Rights (CESCR), the Committee committed during wartime. on the Elimination of Racial 1. Everyone lawfully within the territory Discrimination (CERD), the of a State shall, within that territory, Individual Complaint Committee on the Elimination of have the right to liberty of movement and Mechanism before the UN Discrimination Against Women freedom to choose his residence. (CEDAW), the Committee Against 2. Everyone shall be free to leave any Human Rights Committee. country, including his own. Case Law Torture (CAT), the Subcommittee 3. The above-mentioned rights shall not on Prevention of Torture (SPT), be subject to any restrictions except those The UN Human Rights Bodies the Committee on the Rights of which are provided by law, are necessary the Child (CRC), the Committee to protect national security, public order, public health or morals or the rights and The United Nations promotes on Migrant Workers (CMW), freedoms of others, and are consistent human rights and fundamental the Committee on the Rights of with the other rights recognized in the freedoms by means of different Persons with Disabilities (CRPD), present Covenant. monitoring mechanisms. These and the Committee on Enforced 4. No one shall be arbitrarily deprived of Disappearances (CED).59 the right to enter his own country.52 mechanisms are the UN bodies, which are divided into two parts: The Universal Declaration of charter-based bodies and Human Rights Committee. The Human Rights (1948), together treaty-based bodies. Charter- Optional Protocol with the International Covenant based bodies were created on the on Civil and Political Rights and basis of the provisions laid down in As mentioned above, treaty- the International Covenant on the Charter of the United Nations based bodies were created under Economic, Social and Cultural or the resolutions of principal the international human rights Rights,53 form the so-called organs of the UN, whose authority treaties and are made up of International Bill of Human derives from the UN Charter.55 independent experts who monitor Rights. These laws have also been Charter-based bodies have broad states’ compliance with their expanded by a set of international human rights mandates, address treaty obligations. Most of these CAP Fellows Paper 210 8 bodies receive secretariat support Covenant have been violated. the provisions, the treaties need from the Human Rights Council The Protocol puts forward to be interpreted. Interpretation and the Treaties Division of the admissibility requirements in rests with the committees Office of the High Commissioner Articles 1, 2, 3, and 5, while concerned. All the Committees for Human Rights.60 The Article 4 sets out basic procedural publish their interpretation of United Nations Human Rights requirements. The Committee the content of human rights Committee (hereafter “the reports annually to the General provisions. These interpretations Committee”) is a treaty body of Assembly on its activities are called “general comments,” the ICCPR. It was established concerning complaints under and are given on thematic issues under Article 28 of the ICCPR. Article 6. Articles 7-14 contain or methods of work.68 They cover The First Optional Protocol technical provisions: becoming a a wide range of subjects, from the to the ICCPR allows individuals party to the Protocol, entry into comprehensive interpretation of to complain to the Human Rights force, notification, amendment, substantive provisions to general Committee about violations of denunciation, etc. guidance.69 When delivering the Covenant. It is a procedural, decisions, the committees refer semi-judicial mechanism for The Human Rights Committee to the general comments in order the Committee to receive and notes that its competence enables to substantiate their conclusions. consider individual complaints it to impose an obligation on The Human Rights Committee alleging a violation of the Member States not to hinder has a general comment on Article Covenant, namely the substantive access to the Committee and to 12 (freedom of movement), rights contained in Part III, if prevent any retaliation against referred to as General Comment appropriate in conjunction with complainants, notwithstanding No. 27.70 the provisions of Parts I and that this is not expressly provided II.61 As its name makes clear, in the Protocol.64 In its interpretation, the the Protocol is not compulsory, Committee states that freedom but once a state party to the On March 2, 1992, Azerbaijan of movement is an indispensable Covenant also becomes a party to became a member of the United condition for the free development the Protocol, any person subject Nations. On August 13, 1993, of a person. Restrictions may be to the jurisdiction of that state Azerbaijan acceded to the imposed on the rights protected may submit a written complaint ICCPR65 and, on November 27, under Article 12 without to the Human Rights Committee 2011, to the Optional Protocol to prejudice to the principle of (assuming that permissible the ICCPR.66 Thus, it recognized liberty of movement, and are reservations have not been ruled the competence of the UN Human governed by the requirement of out).62 This is not limited to Rights Committee to consider necessity provided for in Article nationals or to persons within a complaints from individuals who 12, Paragraph 3, provided that it state’s territory, but extends to all claimed that their rights under is consistent with the other rights persons who are directly subject the Covenant had been violated.67 recognized in the Covenant. to a state’s exercise of power In their reports, states parties through its authorities. Thus, a Jurisprudence and an should provide the Committee national of a state party residing Interpretation of the Human with the relevant domestic legal abroad who is denied a passport Rights Committee on the rules and administrative and by that state is able to bring a Freedom of Movement. General judicial practices concerning the claim to the Committee.63 Comment No. 27 rights guaranteed by Article 12.

Parties who ratify or accede to The UN human rights treaties have In its decision of Zoolfia v. the Optional Protocol recognize treaty bodies, committees made Uzbekistan,71 the Committee the competence of the UN up of independent experts that recalls General Comment 27 Human Rights Committee to monitor implementation of the on Article 12, where it stated hear complaints from individuals core international human rights that freedom of movement is who claim their rights under the treaties. In order to understand an indispensable condition

CAP Fellows Paper 210 9 for the free development of an boarding a flight from Ashgabat individual. A state’s refusal to individual. However, it also to Tashkent in January 2004, issue or renew a passport for a recalls that the rights provided without any explanation. Since national residing abroad may under Article 12 are not absolute. then, she has not been able deprive this person of the right The Committee notes that to travel abroad or within the to leave the country of residence Paragraph 3 of Article 12 allows country. In June 2008, her and to travel elsewhere. A refusal for exceptional cases in which husband was prevented from cannot be justified by claiming the exercise of rights protected leaving the country for Moscow. that the national would be able by Article 12 may be restricted. In The authorities also prevented to return to the state’s territory accordance with the provisions their daughter, then a student at without a passport. of that paragraph, a state party Beijing University, from leaving may restrict the exercise of those the country. In its decision, the Article 12, Paragraph 3 provides rights only if the restrictions are Committee recalls its General for exceptional circumstances in provided by law; are necessary to Comment No. 27 on the freedom which rights under Paragraphs protect national security, public of movement. The Committee 1 and 2 may be restricted. These order, public health or morals, reiterates its interpretation that restrictions must be provided or the rights and freedoms of the rights covered by Article 12, by law, must be necessary in a others; and are consistent with Paragraph 2 are not absolute and democratic society, must be for the other rights recognized in the may be restricted in accordance the protection of these purposes, Covenant. In the present case, with the permissible limitations and must be consistent with however, the state party failed set out in Article 12, Paragraph 3. all other rights recognized in to provide any information that In its General Comment No. 27, the Covenant.75 Restrictions would justify such a restriction or the Committee also notes that “it is that are not provided for by the its proportionality. Accordingly, not sufficient that the restrictions law or are not consistent with the Committee concluded that serve the permissible purposes; the requirements of Article 12, there had been a violation of they must also be necessary to Paragraph 3 would violate the Article 12, Paragraphs 2 and 3 of protect them” and that “restrictive rights guaranteed by Paragraphs the Covenant. measures must conform to the 1 and 2.76 States should always principle of proportionality; they respect the principle that the Once a person is lawfully within must be appropriate to achieve restrictions must not impair a state, any restrictions on his or their protective function.”73 The the essence of what is right; her rights guaranteed by Article Committee found that the state the relation between right and 12, Paragraphs 1 and 2, as well party had violated the author’s restriction, between norm and as any treatment different from rights under Article 12, Paragraph exception, must not be reversed. that accorded to nationals, have 2 of the International Covenant The laws authorizing the to be justified under the rules on Civil and Political Rights.74 application of restrictions should of Article 12, Paragraph 3. The use precise criteria and must not individuals also have the right to The obligations are aimed at use wide margins when exceeding determine their destination state ensuring the rights guaranteed the bounds of the permissible as part of the legal guarantee in by Article 12, Paragraph 2 and restriction enumerated by Article Article 12, Paragraph 2. Orazova are imposed both on the state 12, Paragraph 3.77 In the case v. Turkmenistan72 is one of of residence and on the state of of Zoolfia v. Uzbekistan, the Human Rights Committee’s nationality. Since international referring to General Comment 27, important decisions on travel travel usually requires the the Committee noted that “it is bans and bears a substantial appropriate documents, the right not sufficient that the restrictions resemblance to the travel ban to leave a country also covers serve the permissible purposes; situation in Azerbaijan. Svetlana the right to obtain the necessary they must also be necessary to Orazova (the author of the travel documents. The issuing protect them” and that “restrictive complaint) was stopped by of passports is the obligation measures must conform to the Turkmen border officials while of the state of nationality of the principle of proportionality; they

CAP Fellows Paper 210 10 must be appropriate to achieve when entering the country. Some party to the relevant treaty.84 their protective function.”78 Azerbaijanis are refused visas to They are tasked with monitoring visit their relatives. They believe implementation of the rights set The principle of proportionality this refusal is due to their anti- forth in the treaties and deciding has to be observed not only in government stance. On this point, on complaints brought against theory but also in practice. That part of the General Comment those States. is to say, it should be respected No. 27 on Article 12, Paragraph not only in the law that frames 4 is relevant: it notes that the The complaint mechanism for the restrictions but also by the wording of the paragraph does alleged violations of the articles administrative and judicial not distinguish between nationals enshrined in the ICCPR is authorities when applying the and aliens. Thus, the persons regulated by the First Optional law. States should ensure that entitled to exercise this right can Protocol to the Covenant, a any proceedings relating to the be identified only by interpreting separate treaty that is open to exercise or restriction of these the meaning of the phrase “his states party to the Covenant.85 rights are expeditious and that own country.” The scope of States that are party to the reasons for the application of “his own country” is broader Optional Protocol recognize restrictive measures are provided. than the concept “country of his the competence of the Human nationality.” It is not confined Rights Committee—a panel of 18 The application of restrictions to nationality in a formal sense; independent experts who meet in any individual case must be at the very least, it embraces an three times a year—to receive based on clear legal grounds and individual who, because of his or complaints from persons within meet the test of necessity and the her special ties to a given country, their jurisdiction who allege requirements of proportionality. cannot be considered a mere violations of their rights under For instance, an individual alien.80 the Covenant.86 cannot be prevented from leaving a country merely on the grounds How to Submit A complaint can be brought that he or she is the holder of Communications to the UN against a state only if it satisfies “state secrets.”79 Human Rights Committee two conditions. Firstly, the state must be a party to the ICCPR. The application of the restrictions Requirements Secondly, the state party must permissible under Article have recognized the competence 12, Paragraph 3 needs to be The First Optional Protocol of the committee by becoming consistent with the other rights allows individuals to complain a party to the First Optional guaranteed in the Covenant to the Human Rights Committee Protocol. and with the fundamental about violations of the ICCPR.81 principles of equality and non- Fact Sheet No. 7 (rev. 1)82 Having a lawyer prepare your discrimination. Thus, it would be explains the procedures open to case is not necessary, though a clear violation of the Covenant individuals and groups who want it is recommended. You may if the rights enshrined in Article the United Nations to take action complain on behalf of another 12, Paragraphs 1 and 2 were on a human rights situation person on condition that restricted by making distinctions pertaining to them. you obtain his or her written of any kind, such as on the basis consent. In exceptional cases, of race, color, sex, language, The basic concept is that anyone you may complain without such religion, political or other may bring a complaint alleging a consent—for example, parents opinion, national or social origin, violation of treaty rights for quasi- may lodge a complaint on behalf property, birth, or other status. judicial adjudication by the body of young children or someone of experts set up by the treaty.83 may complain on behalf of a Some Azerbaijanis living abroad “Treaty bodies” are committees person who is in prison without and receiving the nationality composed of independent experts access to the outside world. of another state face problems elected by those states that are Under these circumstances,

CAP Fellows Paper 210 11 the Committee will not require the author of the communication • If a complaint is lodged on formal authorization. has exhausted domestic remedies. behalf of another person, has Where applicable, it can also be sufficient authorization been A complaint to a committee, submitted within three years obtained or otherwise been called a “communication,” need of the conclusion of another justified to do so? not take any particular form. international investigation or • Is the person a victim of the Your claim should be in writing settlement, unless there are alleged violation? and duly signed. It should provide reasons justifying the delay, taking • Is the complaint compatible basic personal information about into account all the circumstances with the provisions of the ICCPR? yourself (name, nationality, of the communication.93 Delay in • Is the complaint sufficiently and date of birth) and indicate submitting your case may make substantiated? If the person the state against which your it difficult for the state party to has not sufficiently developed complaint is lodged. respond properly. the facts of the complaint or the arguments for a violation of You should set out, There are two major stages of a the ICCPR, the committee may chronologically, all the facts case: the “admissibility” stage reject the claim as insufficiently supporting your claim. You and the “merits” stage. The substantiated for the purposes of should also show that you have “admissibility” of a case means admissibility; in other words, it exhausted the domestic remedies that the formal requirements are may be declared “manifestly ill- available.87 You should inform met, allowing the Committee to founded.” the Committee about whether consider its substance.94 On the • Does the complaint relate to you have submitted your case to basis of the “merits” of the case, events that happened prior to another means of international the committee decides whether the entry into force of the First investigation or settlement.88 or not your rights under a treaty Optional Protocol for the state Finally, you should substantiate have been violated.95 concerned? why you think that the facts • Have all domestic remedies you have put forward constitute The Committee has the capacity been exhausted? a violation of the ICCPR. to take urgent action on those • Has the complaints process Identifying the articles of the occasions where irreparable been abused?98 treaty that have allegedly been harm would be suffered if the • Is the complaint being violated is recommended but case were examined in the examined under another not necessary. All information usual course.96 These are called mechanism of international should be provided in one of the “interim measures.” Typically, settlement?99 If the complaint secretariat’s working languages.89 such requests are issued in order has been submitted to another to prevent actions that cannot treaty body or to a regional The applicant, referred to as later be undone, for instance the mechanism—for example, the “the author,” should produce execution of a death sentence or European Court of Human all documents relevant to his the deportation of an individual Rights—the committee cannot or her claims and arguments, to a country where he or she may examine the complaint without especially administrative or face torture or the death penalty. falling foul of the principle of non- judicial decisions by the national duplication, which is intended to authorities.90 It is also helpful Admissibility avoid unnecessary duplication at to provide copies of the relevant the international level. national laws.91 In case of a lack Before the committee considers • Is the complaint precluded by of essential information, the the merits or substance of the a reservation which the state has secretariat will ask the author to case, admissibility requirements made to the Optional Protocol? provide additional details.92 must be fulfilled.97 The committee may consider one or several of the Merit The communication must be following factors: submitted within five years after Once the committee decides that

CAP Fellows Paper 210 12 the case is admissible, it goes has been transmitted to the human rights is the European on to consider the merits of the author and the state party, the Convention on Human complaint, stating its reasons for process is considered complete. Rights and Fundamental concluding that a violation has or Any complaint about this decision Freedoms (hereinafter the has not occurred under the various must be sent to the Office of the European Convention). It articles it considers applicable.100 High Commissioner for Human entered into force in 1953 and In most cases, the committee can Rights of the UN.104 is the main European human refuse to consider complaints rights convention. It is similar due to a reservation by the Protection Mechanism at to the ICCPR in the sense that state concerned. In exceptional European Level it guarantees civil and political cases, it may find a reservation rights.108 impermissible and consider the The Role of the Council case despite the reservation. If of Europe: The European The number of parties increased the communication is admitted Convention on Human greatly following the fall of the by the committee, it is submitted, Rights Berlin Wall in 1989 and with the through the Secretary General, disintegration of Yugoslavia in the to the state party concerned.101 The Council of Europe has a early 1990s.109 After the collapse The author of the communication unique place on the European of the Soviet Union and the must be informed of any response and international political stage. emergence of new democracies submitted by the state and must It is the oldest international in Central and Eastern Europe, have the opportunity to submit organization dedicated to the the Council of Europe held the any additional information.102 If promotion of cooperation in first summit of heads of state of the state party fails to respond Europe.105 It achieves this through all its member states in Vienna to the author’s complaint, the the protection and promotion in 1993.110 As a result, the Vienna committee takes a decision of human rights, democracy, Declaration was put forward, on the basis of the original and the rule of law, which are according to which the whole of complaint. Once the Committee its raisons d’etre.106 Since its Europe was declared a “vast area reaches a decision on the case, creation, the Council of Europe of democratic security.”111 this decision is communicated has successfully pursued its to the author and the state party goals. It has responded to major Despite Article 4 of the Statute simultaneously. changes on the European political of the Council of Europe, which and social field and taken action states that “any European State What Happens If the Committee in cases of threats to human which is deemed to be able and Decides Your Case?103 rights within Europe.107 Today, willing to fulfill the provisions its role is more vital than ever, as of Article 3 (the rule of law and Crucially, there is no appeal its jurisdiction has been extended enjoyment of human rights against the Committee’s view; its to Eastern Europe, the South and fundamental freedoms) decision is final. If the Committee Caucasus, and Russia. Human can become a member of the finds that the state party has rights, democracy, and the rule COE,”112 certain states still face violated the ICCPR, it invites the of law are not yet strong enough human rights problems. In 2003, state to inform the Committee, in these regions (the situations the decision was made to allow within three months, about the in Russia, Turkey, and the South Russia to become a member of measures it has taken to carry out Caucasus are the worst). Under the Council of Europe. However, the Committee’s ruling. these circumstances, the Council it was not clear how best to of Europe works to safeguard the proceed with the three countries If the Committee decides that fundamental rights and freedoms in the Caucasus region. Finally, there has been no violation of of the hundreds of millions of it was concluded that Armenia, the treaty or that a complaint is citizens in its 47 member states. Georgia, and Azerbaijan— but not inadmissible, once the decision The main legal instrument for the Central Asian states—should protection and promotion of be able to become members of

CAP Fellows Paper 210 13 the Council of Europe.113 With the of a State shall, within that territory, determines cases brought against admission of Russia and other have the right to liberty of movement and them.”117 The Court makes many freedom to choose his residence. post-communist states to the 2. Everyone shall be free to leave any decisions related to freedom of Council of Europe, the number of country, including his own. movement. Among them are state parties rose from 22 in 1989 3. No restrictions shall be placed on the two cases that relate to travel to 47 in 2008.114 This increase exercise of these rights other than such bans imposed by the Azerbaijani resulted in new problems of as are in accordance with law and are government, in which the Court necessary in a democratic society in the interpretation and application interests of national security or public delivered a judgment against of the Convention and greatly safety, for the maintenance of public Azerbaijan and found a violation increased the court’s workload.115 order, for the prevention of crime, for the of Article 2 of Protocol No. 4. As such, several additional protection of health or morals, or for the protection of the rights and freedoms of Protocols have been added to others. The first judgment of the ECtHR its substantive and procedural 4. The rights set forth in paragraph 1 may in which the Court found a provisions. also be subject, in particular areas, to violation of freedom of movement restrictions imposed in accordance with in Azerbaijan was the case of The substantive guarantee law and justified by the public interest in Hajibeyli v. Azerbaijan.118 a democratic society.116 in the Convention has been The applicant was a politician provided by the addition of and a member of the opposition. Signing in support of this Protocol further rights. These include the On April 29, 2000, several began in 1963 and it entered into right to freedom of movement, opposition political parties held force in 1968 after being ratified mentioned in the First, Fourth, an unauthorized demonstration by five member states. Azerbaijan Twelfth and Thirteenth in Baku. The applicant was signed it, along with the Protocols to the Convention. detained and taken to a police Convention, on January 1, 2001 Other Protocols have amended station, where he was charged and ratified both documents on the enforcement machinery. with obstructing state officials by April 25, 2002, whereupon they The most recent Protocols of actual or threatened use of force. entered into force. this kind are the Eleventh and On January 25, 2001, the Baku Fourteenth Protocols, which City Prosecutor’s Office decided The European Court of introduced fundamental reforms to suspend the investigation into Human Rights. Case Law to the Convention’s enforcement his case on the grounds that one machinery. The Protocols, which of the co-accused had absconded Travel Bans make procedural changes, must and could not be located nor his be ratified by all member states. testimony obtained. On July The ECHR is a legally binding 7, 2004, the applicant lodged obligation on the 47 member Protocol No. 4 to the Convention a complaint with the court, states of the Council of Europe for the Protection of Human claiming that the prosecutor’s to guarantee a set of human Rights and Fundamental actions were unlawful, and rights to everyone within their Freedoms, which secures requested that the court jurisdiction. Article 19 of the rights and freedoms other than discontinue the proceedings. Convention states that in order those already included in the He further noted that his case “to ensure the observance of the Convention and in the first was still at the preliminary engagements undertaken by the Protocol thereto (hereinafter investigation stage, despite the High Contracting Parties in the Protocol No. 4), was the second fact that the proceedings had Convention and the Protocols Protocol to add substantive been instituted four years earlier thereto, there shall be set up provisions to the Convention and no procedural act had been a European Court of Human (the first being Protocol No. 1). carried out during that period. Rights. It shall function on a Article 2 of this protocol is He pointed out that he remained permanent basis. The ECtHR related to freedom of movement: under a travel ban and could not reviews the implementation of the obtain a passport to travel abroad. ECHR by Member States when it 1. Everyone lawfully within the territory

CAP Fellows Paper 210 14 After exhausting domestic continued restriction of the refusal as lawful: “...for the time remedies, the applicant applicant’s freedom of movement, being the sentence of August 31, challenged the decisions of the restriction during this period 2011 has not yet been served; the the domestic courts before the was not ‘in accordance with the applicant is a convicted offender, Strasbourg Court. The Court noted law.’”121 Accordingly, the Court and, accordingly, the refusal of that, “the criminal proceedings found a violation of Protocol 4, travel documents does not violate were unreasonably lengthy while Article 2.122 his rights.” the case did not appear to be particularly complex. Whereas Restrictions on In order to challenge the Entry the prosecuting authorities Conditionally Released and Exit Procedures Act, the failed to make any progress in Persons applicant lodged a complaint with the investigation for more than the Constitutional Court. The five years, it is difficult to see, in In the case of a person who has Constitutional Court dismissed the circumstances of the present been released on probation or the complaint on the grounds case, any plausible justification who has received a suspended that a suspended sentence does for the continued restriction sentence, restrictions on freedom not mean that the convicted of the applicant’s freedom of of movement can be justified only offender has been exempted movement; especially without if public interest outweighs the from punishment: he or she is any review of the necessity for it individual’s right to freedom of on probation during the specified either when the investigation was movement and authorities show period of time and may be subject suspended or when the applicant reasonable grounds for refusing to additional restrictions during specifically complained of the the individual a passport.123 that period.125 After domestic restriction in July 2004.”119 The In Azerbaijan, journalists and remedies were exhausted, the Court considered that it “was human rights lawyers are often case was bought before the disproportionate to restrict the released on probation but remain ECtHR. applicant’s freedom of movement subject to travel bans. Journalist for a period of three years and Khadija Ismailova and lawyer The Court reiterated that under five months after the entry into Intigam Aliyev are among those Article 2, Paragraphs 2 and 3 of force of the Convention (and who have been subjected to Protocol No. 4 the authorities for five years and four months travel bans after their release. are obliged to ensure that any in total), particularly when the From this perspective, Vlasov restriction of an individual’s right investigation had clearly failed to and Benyash v. Russia124 to leave his or her country is, produce any results and the case is a landmark case. On August from the outset and throughout ended up being discontinued 31, 2011, the Central District its duration, justified and on account of the expiry of the Court of Sochi convicted the proportionate.126 In certain cases, criminal limitation period. applicant, Benyash, of extortion restrictions on the movements Therefore, the Court finds in and sentenced him to three years’ of convicted offenders may be respect of the restriction in its imprisonment, suspended for justified, for instance by the entirety that a fair balance between three years. He was released in the need to prevent them from re- the demands of the general courtroom. On December 5, 2011, engaging in criminal conduct.127 interest and the applicant’s rights the Federal Migration Service However, the Court noted was not achieved.”120 It notes that refused Benyash’s application for that such restrictions can be “the charges against the applicant a passport on the grounds that he justified only if there are clear became time-barred on 30 April had been arrested on September indications of a genuine public 2005, whereas the preventive 1, 2010 and the criminal interest which outweighs the measure was not lifted until 14 proceedings against him were individual’s right to freedom of September 2005. Consequently, still pending. Benyash applied movement. It further observed in addition to its finding in the for judicial review of the refusal. that restrictions must be based previous paragraph that there On June 28, 2012, the Central on concrete elements that are were no lawful grounds for the District Court of Sochi upheld the truly indicative of the continued

CAP Fellows Paper 210 15 existence of the risk that such of the person concerned could deprived of his passport and measures seek to forestall. “In not be described as “necessary could not retrieve it for a certain cases where the travel ban was the in a democratic society.”132 It period.134 Accordingly, it observed consequence of the applicant’s concluded that there had been a that he was denied the use of that status as a convicted and not violation of Article 2 of Protocol identity document, which would yet rehabilitated offender, the No. 4 to the Convention. have permitted him to leave Court did not consider that such the country and enter any other a general and almost automatic Refusal to Issue a Passport country, in the European Union restriction could be regarded as or otherwise. The Court therefore necessary.”128 Article 2 of Protocol No. 4 to held that the applicant’s right the Convention guarantees any to freedom of movement was The Court considered that person the right to freedom of restricted in a manner amounting the Russian authorities, movement, including the right to to interference as understood apart from referring to the leave any country for any other in Article 2 of Protocol No. 4 to applicants’ convictions and lack country of the person’s choice to the Convention.135 It remained of rehabilitation, did not give which he or she may be admitted. to be determined whether any reasons for refusing them The refusal to issue a passport may that restriction itself was “in passports; they did not examine also amount to interference to the accordance with the law.” the applicants’ individual right to freedom of movement, as situations or explain the need in the case of Baumann v. France, The Court noted that the to impose such a measure on where the Court held that the applicant was neither prosecuted them. “They thus failed to carry refusal to renew the applicant’s nor considered to be a witness out the requisite assessment international passport amounted and remained uninvolved in of the proportionality of the to a measure restricting his right the proceedings in the Criminal restriction of the applicants’ to leave the country.133 Court.136 As such, it did not right to travel abroad and to find any grounds to justify the provide justification for it.”129 The The applicant was a German withholding of the applicant’s Court reiterated that the mere citizen. His passport was seized passport and the continued fact that an individual has been by French investigators in France interference with his right to criminally convicted and has during a raid on one of the hotels freedom of movement. The not yet been rehabilitated could where alleged car thieves had Court did not see any reason to not justify restrictions on his or been staying. One of the suspects accept that the requirements of her freedom to leave his or her was arrested while getting into the investigation could justify country.130 The Russian courts her boyfriend’s (the applicant’s) the decision not to return the relied only on the formal legality car. The applicant himself, applicant’s passport. Accordingly, of the ban under section 15(4), however, was in Germany for it concluded that Article 2 of disregarding the quality of law. treatment. After her release from Protocol No. 4 had been violated. But the Court indicated that such police custody, court proceedings a rigid and automatic approach were not brought against the Kerimli v. Azerbaijan137 could not be reconciled with the applicant or his girlfriend. The likewise involved a violation obligation imposed by Article 2 of applicant asked for his passport of Protocol 4, Article 2. The Protocol No. 4 to ensure that any to be returned, but either this applicant was an opposition interference with an individual’s request was not responded politician. On September 10, right to leave his or her country to or else it was rejected. The 1994, the applicant was arrested is justified and proportionate in applicant submitted the case to during a demonstration and the light of the circumstances.131 the European Court. taken to the police department, The Court therefore considered where a hand grenade was that the automatic imposition of The Court found that, as a result allegedly found in the pocket of a travel ban without any regard of the seizure of the objects in his suit jacket. On the same day, to the individual circumstances question, the applicant was criminal proceedings were begun

CAP Fellows Paper 210 16 against him. On September 13, passport. activity had had a significant 1994, he was formally charged impact on the proportionality of with illegal weapons possession. In September 2006, in his the restriction on the applicant’s He was detained on remand complaint to the authorities right to freedom of movement pending trial, but ten days later, concerned, the applicant asked under Article 2 of Protocol No. 4 he was released from detention. the court to issue him a passport to the Convention.139 On December 11, 1995, the and to order the prosecutor’s investigation in the framework office to “remove the restriction The Court reiterated that the of the criminal proceedings on his freedom of movement” authorities were not entitled to against the applicant was by discontinuing the criminal maintain a long-term restriction suspended on the grounds that proceedings instituted in 1994, on an individual’s freedom of “the perpetrator of the criminal noting that the limitation period movement without regular re- offence had not been identified.” for prosecution in respect to the examination of its justification.140 The applicant was not informed criminal offence (under the old It therefore follows that there had about the decision to suspend the Criminal Code) was five years been a violation of the applicant’s investigation at that time. from the date of the alleged right to leave his country as offence, while under the new guaranteed by Article 2.2 of The applicant held diplomatic and Criminal Code it was seven Protocol No. 4.141 regular passports from 1998 to years from the alleged offence. 2005 and from 2001 until 2006, He therefore argued that the Restriction on Freedom of respectively. In June 2006, the proceedings should have been Movement or Deprivation of applicant asked for a new regular discontinued years earlier, owing Liberty? passport. However, according to to the expiration of the prescribed the applicant, his application was period. After the exhaustion of Since restrictions on freedom rejected in an informal manner. domestic remedies, the applicant of movement are prevalent in The applicant was informed brought the case before the Azerbaijan and the deprivation that the Passport Registration Strasbourg Court. of liberty is an important part Department of the Ministry of of its criminal procedures, it Internal Affairs (PRD) had no The Court noted that the criminal is useful to shed light on the information on the outcome of charge in question became time- differences between them. the criminal proceedings begun barred on September 10, 1999 The ECtHR holds that certain in 1994. He was told that as the and it was up to the relevant measures involving restrictions PRD could not issue passports to prosecuting authorities to on freedom of movement are not persons against whom criminal discontinue the proceedings on always regarded as restrictions proceedings were pending, that date. As for the 2000 Criminal on freedom of movement.142 In he had to provide a statement Code, it came into force after that order to determine whether an from the relevant prosecuting date and was not applicable at individual’s situation is protected authorities confirming that the the time. Although the criminal by Article 5 of the ECHR or criminal proceedings had been proceedings remained pending Article 2 of Protocol No. 4, the discontinued. after the entry into force of the ECtHR considers the individual’s 2000 Criminal Code, which situation, taking into account “a The applicant later discovered that provided for a longer limitation whole range of criteria, such as the criminal proceedings begun period, it could not be applied the type, duration, effects and in 1994 had been suspended on retroactively to the applicant’s manner of implementation of the December 11, 1995 but had never situation.138 measure in question.”143 been discontinued. He therefore complained to the relevant The Court also considered that The difference between authorities about the failure to the fact that criminal proceedings deprivation of liberty and discontinue the proceedings and had been pending for around 20 a restriction on freedom of his resulting inability to receive a years without any procedural movement is determined based on

CAP Fellows Paper 210 17 the degree or intensity of measures for deprivation of liberty on the since by holding the applicants in rather than nature or substance.144 strength of a singular aspect of his Paris’ international airport, they The assessment will depend on regime, but taken cumulatively, became subject to French law. the specific facts of the case.145 The in light of the factors set out France’s domestic law did not short duration of a restriction, above, it considered that the provide for legal, humanitarian, such as a few hours, will not applicant had been deprived of or social assistance, nor did it lay automatically result in a finding his liberty and his case was to be down procedures and time limits that the situation constituted examined under Article 5 rather for access to such assistance.154 a restriction on movement as than Article 2 of Protocol No. 4.149 Therefore, the Court found a opposed to a deprivation of violation of Article 5, Paragraph liberty, however. Other factors In Amuur v. France,150 the 1 on the basis that there were are taken into account, such as applicants, four Somali nationals, insufficient guarantees for the whether there was an element arrived in France by airplane applicants’ right to liberty under of coercion146 and whether the after fleeing Somalia due to fear French law. It is clear from this situation had particular effects of persecution. The Minister of case that ordering a person to stay on the individual, including any Interior refused them the right to in a particular place is not enough physical discomfort or mental enter and they were held in the to amount to a deprivation of anguish.147 airport’s transit zone. The floor liberty as protected by Article 5.155 of the Hotel Arcade was adapted “The closed and cut-off nature The case of Guzzardi v. Italy148 for the purpose of holding the of such a restriction, coupled is a landmark one in this regard. four Somali nationals for 20 days with its duration, might be a The applicant had been arrested before they were sent back to deprivation of liberty rather than in connection with a criminal Somalia. a mere restriction on freedom of charge, but the pre-detention movement.”156 period had expired before the The Court observed that the charges were ready to proceed. applicants were under strict Brief Information on Making He was therefore removed from police surveillance in the airport’s an Application to the ECtHR the prison and taken, under transit zone, without access court order, to a small island off to legal or social assistance. Unlike communications to the Sardinia to be kept under “special The Court further held that an Human Rights Committee, supervision.” Although the island asylum-seeker can voluntarily applications to the ECtHR are was 50 square kilometers, the leave the country where he or she very prevalent in Azerbaijan.157 area reserved for persons in wishes to take refuge, but this fact Article 34 and 35 of the “compulsory residence,” such as does not exclude a restriction on Convention constitute the main Guzzardi, amounted to no more liberty.151 Furthermore, the right legal bases of application to than 2.5 square kilometers. The to leave any country—including the ECtHR. Article 34 of the applicant was able to move freely one’s own—as guaranteed by Convention guarantees the around this area during the day Protocol No. 4 to the Convention right of individual application but unable to leave his residence can become theoretical if no and gives individuals a genuine between 10 p.m. and 7 a.m. He other country offers protection right to take legal action at the had to report to the authorities similar to that which they were international level. twice daily and could only leave expecting to find in the country in the island with prior authorization which they sought asylum.152 The The Court may receive and under strict supervision. His Court concluded that holding the applications from any person, contact with the outside world was applicants in the transit zone of the nongovernmental organisation also supervised and restricted. airport resulted in a deprivation or group of individuals claiming The applicant lived under these of liberty.153 It further noted that to be the victim of a violation conditions for 16 months. The this deprivation of liberty was by one of the High Contracting Strasbourg Court stated that it not compatible with paragraph Parties of the rights set forth in was not possible to establish a case 1 of Article 5 of the Convention, the Convention or the Protocols

CAP Fellows Paper 210 18 thereto. The High Contracting inadmissible if it is incompatible of available domestic remedies Parties undertake not to hinder with the provisions of the Con- and the time limit contained in in any way the effective exercise vention or the Protocols, is man- Article 35.1 of the Convention; of this right.158 ifestly ill-founded, or abuses the (c) showing, where applicable, in- right of individual application. It formation regarding other inter- An application under Article will also be declared inadmissible national proceedings. 34 of the Convention must be if the Court considers that the ap- submitted in writing.159 The plicant has not suffered a signifi- The applicant or the designated application form is downloaded cant disadvantage, unless respect representative must sign the ap- from the Court’s website,160 for human rights, as defined in plication form. If represented, printed, filled out, and sent (along the Convention and the Proto- both the applicant and the rep- with other relevant documents) cols, requires an examination of resentative must sign the “au- to the appropriate address.161 the application and provided that thority” section of the application no case may be rejected on this form. The responses given on the ground which has not been duly application form concerning the considered by a domestic tribu- Conclusion facts, complaints, and compliance nal. with the requirements of The right to freedom of move- exhausting domestic remedies The applicant must set out the ment is protected by national, and the time limit set out in Article facts of the case, his or her com- regional, and international insti- 35.1 of the Convention162 must plaints, and explanations as to tutions. If the national institu- respect the conditions set out in compliance with the admissibility tions fail to protect it adequately, Rule 47 of the Rules of Court.163 criteria in the space provided in regional and institutional institu- Any additional submissions, the application form. The infor- tions can be triggered. This pa- presented as a separate document, mation should be enough to en- per focused on two international must not exceed 20 pages164 and able the Court to determine the bodies which offer effective ways should be divided into “Facts” nature and scope of the applica- of dealing with violations: the and “Complaints or Statements tion. Human Rights Committee and of Violations.” the ECtHR. The protection mech- An applicant does not need legal anisms of the two bodies are sim- The applicants must comply with representation at the introducto- ilar to one another; in particular, admissibility criteria set out in ry stage of proceedings. If he or the admissibility and merit cri- Article 35 of the Convention. she does secure a lawyer, the “au- teria of the two institutions are They must exhaust all domestic thority” section of the application almost the same. Despite these remedies and submit their form must be filled in. Both the similarities, from the applicants’ application within a period of six applicant and the representative perspective, each body has its ad- months from the date on which must sign the authority section. vantages and disadvantages. the final decision was taken. A separate power of attorney is The application will not be not acceptable at this stage, as The formal admissibility criteria accepted by the Court if it is the Court requires all essential of the Human Rights Committee anonymous or substantially the information to be contained in its are not as stringent as those of the same as a matter that has already application form. ECtHR. For instance, communi- been examined. Nor will it be cation with the Committee can be accepted if it has already been An application form must be ac- submitted within 5 years of the submitted to another procedure companied by the relevant docu- exhaustion of domestic remedies, of international investigation ments: whereas for the ECtHR, this peri- or settlement and contains no (a) relating to the decisions or od is 6 months (and once Protocol relevant new information. measures complained about; No. 15 to the Convention comes (b) showing that the applicant into force, it will be decreased to The application will be declared has complied with the exhaustion 4 months). But the Committee’s

CAP Fellows Paper 210 19 main disadvantage is that its de- jan: although the applicant was Notes cisions are not legally binding, so supposed to receive a passport, the state party is not compelled to this has not yet happened. 1 The definition of freedom of move- implement them. ment is contained in several inter- If we look at the statistics of the national and regional human rights instruments, such as the ICCPR and Despite the stringency of the re- two institutions, we will see that the ECHR. quirements of the ECtHR com- the number of cases that come 2 Universal Declaration of Human pared to those of the Committee, before the Strasbourg Court—in- Rights, art. 13, available at http:// its decisions are legally binding cluding from Azerbaijan—is high- www.un.org/en/universal-declara- on member states. The Commit- er than the number of those that tion-human-rights/. tee of Ministers, which supervises come before the Human Rights 3 International Covenant on Civil the execution of Court decisions, Committee. The main reason for and Political Rights, art. 12, avail- may impose sanctions against the this is the legally-binding nature able at http://www.ohchr.org/EN/ respondent government. Article of ECtHR decisions, even if there ProfessionalInterest/Pages/CCPR. 47 of the ECHR says that if the are limitations on the execution aspx. 4 International Convention on the Committee of Ministers consid- of Court decisions in some states. Protection of the Rights of All Mi- ers that a High Contracting Party grant Workers, art. 39, available at refuses to abide by a final judg- http://www.ohchr.org/EN/Profes- ment of the Court, it may refer to sionalInterest/Pages/CMW.aspx. the Court the question of whether 5 The Convention on the Rights of that Party has failed to fulfill its Persons with Disabilities, art. 18, obligation. It must do this after available at http://www.ohchr.org/ serving formal notice to that Par- EN/HRBodies/CRPD/Pages/Con- ty and by a decision adopted by ventionRightsPersonsWithDisabili- a two-thirds majority vote of the ties.aspx. 6 Protocol 4 to the Convention for representatives entitled to sit on the Protection of Human Rights the committee. If the Court finds and Fundamental Freedoms, art. 2, a violation, it shall refer the case available at http://www.echr.coe. to the Committee of Ministers int/Documents/Convention_ENG. for consideration of the mea- pdf. sures that should be taken. If the 7 African Charter on Human and Court finds no violation, it shall Peoples’ Rights, art. 12, available at refer the case to the Committee http://www.achpr.org/instruments/ achpr/. of Ministers, which shall close its 8 examination. However, consid- Gulnar Salimova, “Forced Limbo: How Azerbaijan Prevents Jour- ering that the Council of Europe nalists from Leaving the Country,” includes Eastern European coun- Open Democracy, September 27, tries, the South Caucasus, Tur- 2016, https://www.opendemocracy. key, and Russia (the last of which net/od-russia/gulnar-salimova/ has a great deal of influence over forced-limbo-how-azerbaijan-pre- a handful of other Council of Eu- vents-journalists-from-leav- rope member states), getting a ing-country, accessed June 14, 2017. two-thirds majority vote of is not 9 “Promotion and Protection of All easy. This means that it is practi- Human Rights, Civil, Political, Eco- cally impossible to impose sanc- nomic, Social and Cultural Rights, Including the Right to Development” tions on the state concerned. For (report of the Special Rapporteur on example, Azerbaijan has refused the Situation of Human Rights De- to adhere to certain decisions fenders on his mission to Azerbaijan, made by the ECtHR, including Human Rights Council, 34th session, the case of Kerimli v. Azerbai- Agenda item 3, February 27-March

CAP Fellows Paper 210 20 24, 2017, p. 8-9, 22). htm, accessed June 16, 2017. tigam Aliyev Allowed to Leave 10 Human Rights Watch, “Azerbai- 22 Salimova, “Forced Limbo.” Country,” Institute for Reporters’ jan: Events of 2015,” World Re- 23 “Journalists to Take Fight Against Freedom and Safety, June 5, 2016, port 2016, https://www.hrw.org/ Travel Ban to European Court,” In- https://www.irfs.org/news-feed/ world-report/2016/country-chap- stitute for Reporters’ Freedom and human-rights-defender-intigam-ali- ters/Azerbaijan. Safety, December 12, 2016, https:// yev-allowed-to-leave-country/, 11 Freedom House, “Azerbaijan,” www.irfs.org/news-feed/journalists- accessed June 19, 2017. Freedom in the World 2017, https:// to-take-fight-against-travel-ban-to- 33 Migration Code of the Republic freedomhouse.org/report/free- european-court/, accessed June 18, of Azerbaijan, art. 9. Last amended dom-world/2017/azerbaijan. 2017. May 8, 2017. 12 U.S. Department of State, Bureau 24 “Meydan TV Staff Banned from 34 Law of Azerbaijan Republic on of Democracy, Human Rights and Leaving the Country,” Institute for Execution, art. 84.1, http://e-qanun. Labour, “Azerbaijan 2016 Human Reporters’ Freedom and Safety, gov.az/framework/1406, accessed Rights Report,” Country Reports on June 30, 2015, https://www.irfs. June 21, 2017. Human Rights Practices for 2016, p. org/news-feed/meydan-tv-staff- 35 Civil Procedural Code of the Azer- 23, 25-26, https://www.state.gov/ banned-from-leaving-the-country/, baijan Republic, art. 231.3, available documents/organization/265608. accessed June 13, 2018. at http://www.e-qanun.az/code/9, pdf. 25 “Azerbaijan: Khadija Ismay- accessed June 21, 2017. 13 Institute for Reporters’ Freedom ilova Sentenced to 7.5 Years in 36 Ibid, art. 231.4 and Safety, “Freedom of Expression Prison,” Organized Crime and 37 The Tax Code of the Republic of Ahead of Controversial Constitu- Corruption Reporting Project, Azerbaijan, art. 23.1.15-3, http:// tional Referendum: 2016 Third September 1, 2015, https://www. www.e-qanun.az/code/12, accessed Quarterly Report on Freedom of occrp.org/en/daily/4354-azer- June 21, 2017. Expression in Azerbaijan,” https:// baijan-khadija-ismayilova-sen- 38 Ibid, art. 24.0.2-1 www.irfs.org/wp-content/up- tenced-to-7-5-years-in-prison, 39 Law of the Azerbaijan Republic on loads/2016/11/Freedom-of-Expres- accessed June 18, 2017. the Status of the Military Personnel, sion-Ahead-of-Controversial-Con- 26 “Human Rights Defender Khadija art. 23, http://www.e-qanun.az/ stitutional-Referendum.pdf. Ismayilova Released after 537 Days framework/6998, accessed June 22, 14 ECtHR, Hajibeyli v. Azerbaijan, in Jail,” Front Line Defenders, May 2017. Application No. 16528/05, Judg- 25, 2016, https://www.frontlined- 40 Ibid, art. 23 (d). ment of 2008. efenders.org/en/case/case-histo- 41 Ibid, art. 23.3. 15 ECtHR, Kerimli v. Azerbaijan, Ap- ry-khadija-ismayilova, accessed 42 Law of the Azerbaijan Republic plication No. 3967/09, Judgment of June 18, 2017. on State Secrets, art. 25.0.1, http:// October 16, 2015. 27 “Journalist Khadija Ismayilova www.mfa.gov.az/files/file/27.pdf, 16 Institute for Reporters’ Freedom Remains Under Travel Ban,” In- accessed June 22, 2017. and Safety, “Freedom of Expres- stitute for Reporters’ Freedom and 43 Charter of the United Nations, art. sion.” Safety, December 8, 2016, https:// 1 (June 26, 1954). 17 Salimova, “Forced Limbo.” www.irfs.org/news-feed/journal- 44 Ibid, Articles 1, para. 3, 13, para. 1 18 “Court Denies Journalist’s Appeal ist-khadija-ismayilova-remains-un- b., 55 c., 56, 68, and 76 c. in annex Against Travel Ban,” Institute for der-travel-ban/, accessed June 18, VI.1. Reporters’ Freedom and Safety, 2017. 45 OHCHR, “Civil and Political July 25, 2016, https://www.irfs.org/ 28 Special Rapporteur on the Situ- Rights: The Human Rights Com- news-feed/court-denies-journalists- ation of Human Rights Defenders, mittee Fact Sheet No. 15 (Rev.1),” appeal-against-travel-ban/, accessed “Promotion and Protection of All https://www.ohchr.org/Docu- June 16, 2017. Human Rights,” 7. ments/Publications/FactSheet15rev 19 Salimova, “Forced Limbo.” 29 Ibid, 7-8. .1en.pdf. 20 Institute for Reporters’ Freedom 30 “Case History: Intigam Aliyev,” 46 OHCHR, “International Human and Safety, “Court Denies Journal- Front Line Defenders, last updated Rights Law,” http://www.ohchr.org/ ist’s Appeal.” March 31, 2016, https://www.front- EN/ProfessionalInterest/Pages/In- 21 “Izolda Aghayeva Banned from linedefenders.org/en/case/case-his- ternationalLaw.aspx. Foreign Travel,” Meydan TV, March tory-intigam-aliyev, accessed June 47 Hurst Hannum, “The Status of the 24, 2016, https://www.meydan.tv/ 19, 2017. Universal Declaration of Human en/site/news/12947/Izolda-Agha- 31 Ibid. Rights in National and International yeva-banned-from-foreign-travel. 32 “Human Rights Defender In- Law,” Georgia Journal of Internati-

CAP Fellows Paper 210 21 91 Ibid. http://www2.ohchr.org/english/ onal and Comparative Law 25, no.1 92 Ibid, Rule 97.4 bodies/hrc/docs/CCPR.C.GC.33. (1996): 289. 93 Ibid, Rule 96 (c) 48 Ibid. pdf, accessed July 6, 2017. 94 65 The First Optional Protocol, art. 5. 49 ICCPR, ch. 4. Universal Declaration of Human 95 Ibid, Rule 99-101. 66 The First Optional Protocol to the Rights, art. 13 (December 10, 1948), 96 Ibid, Rule 92. International Covenant on Civil and http://www.ohchr.org/EN/UDHR/ 97 Ibid, Rule 96; The First Optional Documents/UDHR_Translations/ Political Rights, March 23, 1976. 67 Protocol, art. 5. eng.pdf, accessed July 3, 2017. ICCPR, art. 1. 98 68 Ibid, art. 5.2 (a) 50 OHCHR, “Monitoring the Core United Nations, “Protect Hu- 99 Ibid, art. 4. International Human Rights Trea- man Rights,” https://www.unesco. 100 Ibid, Rule 99-101. ties,” http://www.ohchr.org/EN/ de/c_humanrights/I.php, accessed 101 Ibid, Rule 99.1 HRBodies/Pages/WhatTBDo.aspx, July 4, 2017. 102 Ibid, Rule 99.3 51 accessed July 18, 2017. Marc J. Bossuyt, Guide to the 103 Ibid, Rule 101. 69 Ibid. “Travaux Préparatoires” of the In- 104 Mail address: Petitions Team, 70 “ICCPR General Comment No. ternational Covenant on Civil and Office of the High Commissioner 27: Article 12 (Freedom of Move- Political Rights (Dordrecht, Boston, for Human Rights United Nations ment),” adopted November 2, and Lancaster: Martinus Nijhoff Office at Geneva, 1211 Geneva 10, 1999, http://www.refworld.org/do- Publishers, 1987), xix-xx. Switzerland, Fax: + 41 22 9179022 52 cid/45139c394.html, accessed July ICCPR, Article 12. (particularly for urgent matters), 53 18, 2017. The International Convention on E-mail: [email protected]. 71 HRC, Zoolfia v. Uzbekistan, View, Economic Social and Cultural Rights 105 Council of Europe, “The Council Communication No. 1585/2007, (ICESCR), http://www.ohchr.org/ of Europe—800 Million Europe- CCPR/C/96/D/1585/2007, August EN/ProfessionalInterest/Pages/CE- ans: Guardian of Human Rights, SCR.aspx. 21, 2009, para. 8.3. 72 Democracy and the Rule of Law,” 54 HRC, Orazova v. Turkmen- United Nations, “Protect Human 2012, https://www.ecml.at/Por- istan, View, Communica- Rights.” tals/1/800_millions_en.pdf, 3. 55 tion No. 1883/2009, CCPR/ Dag Hammarskjold Library, “UN 106 Ibid. C/104/D/1883/2009, March 20, Documentation: Human Rights— 107 Ibid. Charter-Based Bodies,” http:// 2012. 108 73 UN, Department of Econom- research.un.org/en/docs/human- Ibid, para. 7.3. 74 ic and Social Affairs, Division for rights/charter, accessed July 5, Ibid, para. 8. 75 Social Policy and Development, 2017. Ibid, para. 11. 76 “International Norms and Standards 56 Ibid. Ibid, para. 12. 77 Relating to Disability: Part III, The 57 Ibid. Ibid, para. 13 78 Regional Human Rights System,” 58 HRC, Zoolfia v. Uzbekistan, para. Dag Hammarskjold Library, “UN 1(1.1). 8.3. Documentation: Human Rights— 109 David Harris, Michael O’Boyle, 79 Ibid, para. 16 Treaty-Based Bodies,” http:// Ed Bates, and Carla Buckley, Law 80 Ibid, para. 20 research.un.org/en/docs/human- of the European Convention on Hu- 81 The First Optional Protocol to the rights/treaties, accessed July 5, man Rights, Third Edition (Oxford: 2017. ICCPR, art. 1. 82 Oxford University Press, 2014), 3. 59 OHCHR, “Fact Sheet No.7/Rev.1, Ibid. 110 Hans Winkler, “Council of Europe 60 Complaints Procedure,” https:// OHCHR, “Human Rights Bodies,” and Integration of Eastern European www.ohchr.org/Documents/Publi- http://www.ohchr.org/EN/HRBod- States into Europe,” in The Council ies/Pages/HumanRightsBodies. cations/FactSheet7Rev.1en.pdf. 83 of Europe: Pioneer and Guarantor aspx, accessed July 5, 2017. The First Optional Protocol, art. 1. 84 for Human Rights and Democra- 61 OHCHR, “Fact Sheet No. 15,” 10. ICCPR, art. 28-39. 85 cy, ed. Renate Kicker (Strasbourg: 62 Ibid. The First Optional Protocol. 86 Council of Europe, 2010), 21. 63 Ibid. OHCHR, “Fact Sheet No. 15.” 111 87 Ibid, 22. 64 th The First Optional Protocol, art. 2. Human Rights Committee, 94 112 Ibid. 88 Ibid, art. 5.2 (a) session, “General Comment No 33: 113 Ibid. 89 Rules of Procedure of the Human The Obligations of States Parties 114 Harris et al., Law of the Europe- Rights Committee, January 11, 2012, under the First Optional Protocol to an Convention, 3. Rule 28. the International Covenant on Civil 115 Ibid. 90 Ibid, Rule 86. and Political Rights,” 116 Protocol No. 4 to the Convention

CAP Fellows Paper 210 22 93. for the Protection of Human Rights 145 Nuala Mole and Catherine and Fundamental Freedoms, art. 2. Meredith, Asylum and the Europe- 117 ECHR, art. 19. an Convention on Human Rights 118 ECtHR, Hajibeyli v. Azerbaijan. (Strasbourg: Council of Europe 119 Ibid, para. 66. Publishing, 2010), 138. 120 Ibid, para. 67. 146 ECtHR, Foka v. Turkey, No. 121 Ibid. para. 68. 28940/95, June 24, 2008, para. 78. 122 Ibid. para. 69 147 ECtHR, H.L. v. the United King- 123 Vlasov and Benyash v. Russia, dom, No. 45508/99, October 5, Applications nos. 51279/09 and 2004. 32098/13, January 31, 2017, para. 148 ECtHR, Guzzardi v. Italy. 34. 149 Ibid, para. 95. 124 Ibid. 150 ECtHR, Amuur v. France, No. 125 Ibid, para. 22. 19776/92, judgment of June 25, 126 Ibid, para. 32. 1996. 127 ECtHR, Raimondo v. Italy, Febru- 151 Ibid, para. 48. ary 22, 1994, § 39. 152 Ibid. 128 ECtHR, Milen Kostov v. Bulgaria, 153 Ibid, para. 49. Application no. 40026/07, Septem- 154 Ibid, para. 53. ber 3, 2013, § 17. 155 Mole and Meredith, Asylum and 129 ECtHR, Vlasov and Benyash v. the European Convention on Hu- Russia, Applications nos. 51279/09 man Rights, 80 and 32098/13, September 20, 2016, 156 Ibid. para. 35. 157 The reasons for this will be 130 ECtHR, Nalbantski v. Bulgaria, touched upon in the conclusion of Application no. 30943/04, February this paper. 10, 2011, § 67. 158 ECHR, art. 34. 131 Ibid, § 62. 159 ECtHR, Rules of Court, Rule 45. 132 ECtHR, Vlasov and Benyash v. The new version entered into force Russia, September 20, 2016, para. on November 14, 2016. See http:// 37 www.echr.coe.int/Documents/ 133 ECtHR, Baumann v. France, Ap- Rules_Court_ENG.pdf. plication no. 33592/96, 2001, § 61 160 The application form can be 134 Ibid, § 63 downloaded from: http://www.echr. 135 Ibid. coe.int/Pages/home.aspx?p=appli- 136 Ibid, § 66 cants/forms&c. 137 ECtHR, Kerimli v. Azerbaijan. 161 An application must be sent to the 138 Ibid, § 51. following address: The Registrar, 139 Ibid, § 53. European Court of Human Rights, 140 Ibid, § 56. Council of Europe, F-67075 Stras- 141 Ibid, § 57. bourg Cedex. 142 Yannis Ktistakis, “Protecting 162 ECHR, art. 35. Migrants Under The European Con- 163 ECtHR, Rules of Court, Rule 47. vention On Human Rights And The 164 European Social Charter: A Hand- Ibid. book for Legal Practitioners,” Coun- cil of Europe, 2013, 23, https:// rm.coe.int/168007ff59. 143 ECtHR, Austin and Others v. the United Kingdom [GC], Nos. 39692/09, 40713/09 and 41008/09, March 15, 2012, para. 57. 144 ECtHR, Guzzardi v. Italy, No. 7367/76, November 6, 1980, para.

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