European Human Rights Advocacy Centre Bulletin NO.25 / SUMMER 2016 ARTICLES

Contents Welcome to the Summer 2016 Why we must protect p.3 The perspective of one of the first Chechen applicants to the EHRAC Bulletin European Court and save the European This is the 25th edition of the EHRAC Bulletin. In this anniversary edition we look p.4 In conversation with Lord Judd back on some of our successful cases over the last thirteen years, and discuss current and future priorities. We also wanted to pay tribute to the volunteers and interns who Court of Human Rights p.6 Human rights lawyering in have worked with us over this period; one of our ‘alumni’, Shoaib M Khan, takes a Azerbaijan look at what six of our former interns are doing now, and how the internship helped The perspective of one of the first Chechen applicants them to pursue a career in human rights, whether as part of civil society, the legal p.8 Reflections on the rule of law in community or academia. Libkan Bazayeva, Director of NGO “Women for Development”, Grozny Azerbaijan EHRAC’s first judgments in 2005 were in six cases from Chechnya, concerning tor- p.10 A comparative view on civil society ture, killings and indiscriminate bombing by the Russian security services. Libkan Libkan Bazayeva (Image featured in EHRAC’s 10 Year repression Bazayeva, an applicant in one of these cases, explains the important role the judg- Anniversary Exhibition in 2013) ment from the European Court of Human Rights has played in providing her and p.11 Border issues in Georgia and South those around her with hope of redress. We also speak to Lord Frank Judd, the former Ossetia As someone who has successfully applied to The period from 2000 to 2006 was one of nas- into practical reality for societies and their Council of Europe Special Rapporteur on Chechnya, about how Chechnya changed the European Court of Human Rights,1 the cent but mounting hope. It was a time when governments. The future of humanity relies p.14 Stories from our former interns during his four-year tenure and his experiences on the ground. Some of our earliest year 2000 for me marked the beginning of only a few Chechen complaints were submit- on human rights. cases from Georgia relate to border issues with Russia; Monica Ellena (a journalist in a period of hope for justice and the chance ted to the Court, underwent examination and p.16 The 2015 Armenian constitutional Tbilisi) tells the story of those living in the breakaway region of South Ossetia now, of Government protection from human rights resulted in positive judgments. When the first EHRAC was founded in 2003 to take cases of referendum in light of the International Criminal Court’s decision to launch an investigation into violations. Residents of the Chechen Republic cases by the Strasbourg Court were decided human rights violations originating from the crimes allegedly committed during the 2008 armed conflict. and local leaders, who had tried to seek inter- in favour of those who had suffered as a result Chechen conflict, including indiscriminate p.18 UN observations and recommenda- national protection during the First Chechen of unlawful military operations in Chechnya, bombings, enforced disappearances and tions on preventing and addressing The landscape in Russia and the South Caucasus has, of course, changed since we War (1994-96), had been unable to secure there was a dramatic shift in the mentality of extra-judicial killings. Six of these cases, violence against women were founded in 2003, and we continue to work with our partner NGOs to litigate formal means of internationally protecting hundreds and thousands of victims, who had, including Libkan Bazayeva’s, were decided ground-breaking cases on a number of themes. Over the last few years, the intensi- their rights. Thousands of crimes had not until that point, lost faith in justice. on 24 February 2005, the very first from p.20 Interview with Tamila Tasheva, fication of civil society repression in Russia and Azerbaijan has led to large volumes been accorded adequate legal assessment, Chechnya to be decided by an international KRYM SOS of cases relating to NGO regulation and imprisoned human rights defenders. Kirill and perpetrators went unpunished. This legal There was subsequently a sharp increase in body. Libkan’s car was hit by a bomb on 29 Koroteev (Legal Director, Memorial HRC) explores some of the parallels between the dead-end drove the people of Chechnya to the number of applications submitted to the October 1999 as she and her family were p.22 Friendly settlements and unilateral two countries, while Samed Rahimli, a human rights lawyer in Baku, provides an in- desperation; we lost faith in the justice system Strasbourg Court. The positive precedent in trying to leave a suburb of Grozny to escape declarations in Georgia sight into the experiences of lawyers defending those who protect the rights of others. and the world’s humanity. the Court’s first decisions stimulated a growth fighting between Chechen separatists and Recently released human rights defenders Intigam Aliyev, Rasul Jafarov and Anar in people’s legal understanding and demand Russian State forces. Libkan applied to p.24 Recent EHRAC judgments and Mammadli reflect on the use of politically-motivated charges to silence critical voic- I remember how difficult it was to convince amongst the community and the State. This the Court, along with Medka Isayeva and decisions es in Azerbaijan. Women’s rights is another of our priorities: Kate Levine (EHRAC people who had suffered severely as a result was a significant long-term result. Zina Yusupova (also victims of the bomb- Lawyer) explores how UN mechanisms dealing with violence against women have of war crimes committed in Chechnya that ing) in April 2000. The Court found that p.27  Judgments and decisions in engaged with this issue regionally, drawing on our experience of X and Y v Georgia, applying to the Strasbourg Court could lead In a changing world, in which new conflicts Russia had failed in its duty to protect her our cases 2005 - 2016 to something meaningful. Those affected and hotspots are emerging, it is important to right to life, in violation of Article 2 of the the first case from the region to be decided by the UN Committee for the Elimination by the events, suffering because of the war, preserve this institution, the European Court European Convention on Human Rights; of Discrimination Against Women. p.28 Information about EHRAC witnessed daily how war crimes against the of Human Rights. It is the only structure according to the Court, the State had also people were going unpunished; worse still, the which protects individuals from legal injus- failed to conduct an effective, objective and Also writing on the Georgian context, Tamar Abazadze (Strategic Litigation Lawyer, Government was able to commit such viola- tices committed by the Russian State, which thorough investigation, therefore Libkan did Georgian Young Lawyers Association) examines the Government’s recent body of Eu- tions against specific individuals, protected often uses its powerful security resources not have access to an effective remedy, in ropean Court cases decided by way of ‘unilateral declaration’. The referendum on con- by the justification of combatting terrorism. against its own people, asserting the priority violation of Article 13 in conjunction with stitutional reform in Armenia took place on 6 December 2015, highlighting problems of State interests ahead of the interests of the procedural limb of Article 2. Finally, in the fairness of the electoral system; Lousineh Hakobyan (President of the Europe in The year 2000 was a turning point in over- the individual. given that Libkan’s family’s vehicles and Law Association, Yerevan) evaluates the extent to which the way the referendum com- coming our disillusionment and our fear that household items had been destroyed as a plied with international standards. Continuing his series of articles about the effect applying for international protection could lead The European Court of Human Rights, result of the aerial attack, the Court found of the annexation of Crimea on Crimean Tatars, Graham Donnelly (PhD Researcher, to even harsher persecution and punishment along with the Committee of Ministers, will grave and unjustified interferences with her University of Glasgow) speaks to Tamila Tasheva from the NGO KRYM SOS, to dis- by the State. Of course, it is for this reason that soon become the only mechanism capable peaceful enjoyment of her possessions in cuss the challenges they face both in Crimea and mainland Ukraine. only those most convinced that we would have of seeking to persuade States, which have violation of Article 1 of Protocol 1. to fight for justice embarked on this journey. themselves signed Conventions and resolu- Professor Philip Leach, EHRAC Director On the other hand, ordinary people – dispirited tions stating that human rights are of the Notes by the war, living against a background of highest value for contemporary humanity, habitual legal nihilism – were unable to believe to implement these decisions. This is a way 1. Isayeva, Yusupova and Bazayeva v Russia (Nos. 57947/00, 57948/00 and 57949/00), 24.02.2005 that this could be a chance for an objective of translating the legal standards advancing

Cover image: Razor wire fence cuts through Bobveni, Georgia (Credit: Monica Ellena, Tbilisi) remedy, delivered by a fair court. democratic values from the legal abstract

EHRAC BULLETIN | SUMMER 2016 3 referendum be postponed as, in his opinion, and the North Caucasus, but Russia has taken As our conversation comes to a close, Lord Judd Chechen voters were insufficiently informed little action to implement these judgments, also draws out parallels with the status of human about the referendum and the security beyond the payment of compensation to the rights in the UK, of which he is deeply critical. In conversation with situation made proper preparations for it victims.5 In June 2012, Lord Judd asked the Talking of the Government’s proposal to repeal impossible. Moscow rejected his plea, and he UK Government what proposals they would put the Human Rights Act and replace it with a publicly stated that he would resign if the ref- forward to the CoE’s Committee of Ministers British Bill of Rights, Lord Judd asks: “What is erendum took place on 23 March 2003. When to press for follow-up action by the Russian the motivation for bringing in the Bill of Human PACE also rejected his proposal to postpone Government in the case of Shafiyeva v Russia Rights? Is it to protect human rights? No!” Lord Frank Judd the referendum, Lord Judd resigned.4 (one of EHRAC’s cases).6 He raised the issue of Russia’s non-implementation of judgments “The work of EHRAC constantly impresses Reflections of the former Special Rapporteur on Chechnya for the Council of Europe (1999-2003) Reflecting on this decision, Lord Judd says in Chechen cases in the House of Lords as and inspires me. The Russian government has that he often wonders if he did the right thing. recently as July 2015.7 set out to isolate from international scrutiny Sophie Rust, EHRAC Programme Assistant However, he came to realise that there were the cynical, systematic, brutal and continuing many people who appreciated his actions. Lord During Lord Judd’s tenure, the political abuse of justice and human rights in Chechnya Judd was always very aware of the inherent situation in Russia changed dramatically. He and the North Caucasus. Too much of the compromise of working with the Russian Gov- describes a “spring” in the Russian media at media, academia and political leadership ernment. On the one hand this was the only the beginning of his time as Special Rappor- in the West has inexplicably condoned this. legitimate way of making progress in Chechnya. teur in 1999, when he spoke about Chechnya Russia’s record has inevitably provoked more However, he comments, “Every now and then at press conferences. Four years later and the extremism, terrorism and instability across there comes a time for a fundamental stand.” media had clamped down in Russia; press the region and beyond. In EHRAC we have It seems that his resignation from the position conferences had become risky and it was only a team of first-rate lawyers and their small, Lord Judd was a member of the Parliamentary Lord Judd explains that he has always sought of Special Rapporteur was just that. brave journalists who would speak with Lord dedicated support staff working tirelessly and Delegation to the Council of Europe (CoE) to speak objectively about the situation in Judd privately. effectively in the cause of truth and justice. between 1970 and 1973 and again between Chechnya; for example he recalls that at a press Even before his resignation, Lord Their success in helping to ensure 1997 and 2005. He was then appointed to the conference in Chechnya towards the end of his Judd’s analysis of the situation that specific cases of grotesque Political Affairs Committee in 1999 and elected time as Special Rapporteur, he was asked to in Chechnya proved divisive injustice are brought before the Special Rapporteur on Chechnya, reporting to comment on the new infrastructure which had among British politicians: the “The indiscriminate European Court of Human Rights the Parliamentary Assembly of the CoE (PACE); been put in place, such as roads, apartments issue of Chechnya was clouded and the consequent record of in this position he investigated, monitored and and mosques. Lord Judd replied that he was by Russia’s alleged ‘problems nature of the condemnation by the Court are a made recommendations on solu- with security’. At a time when challenge and example to us all. tions to human rights issues in the Russian Government was No ivory towers or academic or the region. During his tenure, Lord justifying its actions in Chechnya bombings; the journalistic voyeurism for them! Judd visited Chechnya nine times by citing the terrorist threat The accumulating body of case and Moscow eleven times. He “Every now posed by Chechen separatist brutality, torture, law speaks for itself. Muscular therefore has extensive first-hand groups, Lord Judd attempted to and highly-motivated engage- experience of the human cost of highlight the unwitting potential and crude intimidation ment is their driving force.” the tensions between the local and then of British foreign policy to population and State authorities. drive people into the hands of Lord Judd’s account of his time as extremist groups. of family and Special Rapporteur is certainly a On 23 March 2016 we were there comes fascinating one, and his significant delighted to meet Lord Judd in Turning to human rights in friends; enforced influence in tenaciously pursuing the House of Lords to hear his Chechnya, Lord Judd says: “I shall human rights issues in Chechnya reflections on his experiences a time for a definitely go to my grave thinking both in the UK Parliament and Lord Frank Judd as Special Rapporteur, and about the people in Chechnya – disappearances...” through his role as Special Rap- also on the ongoing serious and their faces, their courage.” Lord porteur at the Council of Europe A supporter of EHRAC since its inception in unresolved problems within fundamental Judd describes the anger of the cannot be underestimated.9 We 2003, Lord Judd has always taken a keen Chechnya. He talks of the turbu- Chechens he met at the injustice of the situ- One of these journalists was Anna Politkovs- greatly value his continued support for EHRAC interest in the organisation’s litigation work on lence in the region at the time, ation: “The indiscriminate nature of bombings; kaya, human rights activist and critic of Putin’s and his ongoing lobbying of the UK Govern- human rights cases, particularly those from when the second war between the brutality, torture, and crude intimidation of regime and the Second Chechen War, who was ment and the Council of Europe on human stand.” 8 Chechnya. Despite the increasingly hostile Russia and Chechnya was family and friends; enforced disappearances.” murdered in 2006. Lord Judd describes his rights issues through the House of Lords. attitude of the Russian State towards safe- ongoing, and how it impacted The courage displayed by the people living there infinite admiration for Anna, whom he first guarding human rights, he still actively lobbies on those working there. Some strongly moves him to this day. met at an international press conference in Notes

in the House of Lords for continued diplomatic Council of Europe colleagues were anxious very impressed with the new infrastructure Chechnya, and her persistence, despite the 1. http://goo.gl/RhfQhY efforts to persuade Russia to implement judg- about travelling to Chechnya, especially aesthetically, but that he was unsure how well In 2010, when Lord Judd returned to growing danger she faced. 2. http://goo.gl/KmXRrf ments from the European Court of Human when it was impossible to guarantee their it was built, and who had access to it. However, Chechnya for a UK All-Party Parliamentary 3. http://goo.gl/c1ByNW Rights (see p.10).1 With new legislation safety. Lord Judd describes one night staying predominantly, he expressed his sadness that Human Rights Group Fact-Finding Mission Regarding the current political situation in 4. http://goo.gl/4Z6l0y passed in December 2015 allowing Russia’s unexpectedly in a military base in Grozny - despite these superficial developments, there with Nicole Piché (PHRG Co-ordinator), he Russia, or the ‘KGB elite’ as he calls the ruling 5. http://ehrac.org.uk/5HdYF. The Russian Justice Initiative has a full database of cases from the North Constitutional Court to override European the kind of scrutiny they received made it was no progress on human rights issues. But found that in some ways the human rights political class, Lord Judd points out “All the Caucasus here: http://goo.gl/gR8vNo Court judgments if deemed unenforceable, very clear they were not welcome. Although his concerns about human rights were edited situation had deteriorated. people in key positions went to special universi- 6. http://goo.gl/Ag1l1T. Shafiyeva v Russia, (No. the prospect of progress seems unlikely in the Lord Judd admits that there were risks in from all media coverage of his visit. ties and choose special schools for their kids 49379/09), 03.05.2012, http://goo.gl/lT1R9o foreseeable future.2 Lord Judd has stated that travelling to the region, he says: “I can hon- The implementation of judgments on cases of – a carefully nurtured, cynical elite. And what 7. http://goo.gl/qXnq8Y 8. http://goo.gl/x3RoR0 Europe’s feeble response to Russia’s human estly tell you… that I never felt physically The tipping point for Lord Judd came with human rights abuse in Chechnya is an issue is it [based on]? – power and money. In the old 9. For current reporting by the Parliamentary As- rights record amounts to “wanton irresponsibil- afraid. There was plenty to be afraid of. I the referendum that was set to take place which has long frustrated Lord Judd. The days…many people in Russia had to somehow sembly on the situation in Chechnya, see PACE’s ity as its actions continued to incite terrorism was certainly apprehensive, but not afraid. in Chechnya on 23 March 2003 on the new European Court of Human Rights has delivered themselves rationalise what they were doing… statement published on 19 April 2016: http://goo.gl/XruIzi and extremism in the region.”3 I was realistic.” constitution. He had recommended that the over 300 judgments on cases from Chechnya But now it’s just about power and money.”

4 EHRAC BULLETIN | SUMMER 2016 EHRAC BULLETIN | SUMMER 2016 5 leadership of BAA has disbarred not only the mechanisms (for example, the European Court Prospects of HRL in Azerbaijan advocates handling political cases, but also the of Human Rights (ECtHR), which is the most Human rights lawyering advocates who disagreed with their policies.12 used international mechanism for seeking Despite the serious challenges facing HRL in legal redress in Azerbaijan) are long-term in Azerbaijan, some success has been achieved In addition to advocates, there are also con- nature, and few people are interested in long- particularly in the cases brought before the sultant lawyers, who unlike advocates cannot term international mechanisms. ECtHR.17 However, this success is unable to in Azerbaijan participate in criminal proceedings and are not provide an impetus to the development of HRL, entitled to represent clients in the Supreme The prospects of winning cases in Azerbaijan’s because the main obstacle to its development is Challenges and prospects Court (they only have the right to represent domestic judicial system vary depending on the current political system. Although HRL can clients in civil and administrative cases in the nature of the proceedings. In terms of organise an international tribunal reaction in Samed Rahimli, Lawyer, Azerbaijan first instance and appellate courts). The exact criminal cases, Azerbaijani courts are heav- relation to the problems created by the political number of consultant lawyers is unknown; ily dependent on the prosecutor’s office, system, this fact alone is not sufficient to bring however, according to a conservative estimate, which is a remnant of the Soviet legacy. The about serious changes in the political system. they number between 5000 and 6000. The percentage of acquittals in criminal cases in However paradoxical this may seem, prospects Characteristics of human rights role of the consultant lawyer has emerged the Azerbaijani courts does not exceed one for sustainable functioning of HRL depend on lawyering due to the difficulty of admission to the Bar percent.14 The prosecution authorities have serious positive changes in the political system, The number of advocates in Azerbaijan in Azerbaijan and expanded to compensate played a significant role in ensuring the which is not directly dependent on HRL. Despite Human rights lawyering (HRL), including for the shortage of advocates, because a continuity of political authority in Azerbaijan. this fact, lodging cases at international tribunals litigation, emerged as a branch of the legal per 100 thousand people is 8.9, which is minimum of three years’ work experience is In this respect, political power allows prosecu- (primarily at the ECtHR) and then making use profession and gained prominence particularly required to become an advocate. Therefore, tion authorities to enjoy complete dominance of the relevant implementation mechanism to in the last 20-25 years, since the end of the the lowest figure amongst Council of those wishing to engage in advocacy in the even in non-political cases. Therefore, in ensure compliance with positive judgments (in Cold War. Human rights lawyers specialise in Europe member states. future start practicing in this area first, while many cases, judges who hear criminal cases the ECtHR context the Committee of Ministers one, a majority or all of the rights stipulated those who confine their professional careers to are unable to decide against the prosecutor’s of the Council of Europe monitors implementa- in various international agreements governing civil and administrative cases engage in work office, even if they themselves are of a dif- tion) could contribute to improving some of the the human rights framework. The aforementioned political environment and civil cases. It is only possible to lodge a as consultant lawyers. ferent opinion. That Azerbaijan’s legislation systemic problems in Azerbaijan. Especially is inevitably manifested in the legal system, complaint with the country’s Supreme Court creates favourable conditions for the domestic after the so-called 2015-2016 economic crisis HRL in the context of the post-Soviet countries which remains part of the political system. To and participate in Supreme Court proceedings Problems of HRL in Azerbaijan courts’ dependence on the executive branch, in Azerbaijan, such an implementation process focuses on the protection of civil and political date, an independent judiciary has not been through an advocate. Advocates have a legal including prosecution authorities, has been may serve as a tool for pushing the country to rights, and on many occasions the lawyers’ established in Azerbaijan and the courts are monopoly on representation in criminal cases In Azerbaijan, the lawyers engaging in HRL repeatedly criticised by international experts.15 reform its legal system. ‘clients’ are mainstream politicians and very seriously dependent on the executive and Supreme Court proceedings. According belong either to the category of advocates or activists. The main challenge faced by the branch.4 The absence of an independent to recent statistics, the number of advocates consultant-lawyers as classified above. In the In this context, citizens are not interested in Notes lawyers engaging in HRL in Western countries judiciary is one of the main factors prevent- in the country was 818 in 2012 and 934 in early 2000s, several dozen advocates engaged working with advocates who engage in HRL 1. For more information on the nature of the politi- are structural issues arising out of legisla- ing the development of the legal profession 2015.6 A significant majority of these advo- in HRL (a very small part of the country’s advo- on their cases as they believe that they have cal regime in Azerbaijan, see: http://goo.gl/hRWZm7 tion, whereas in the context of post-Soviet in Azerbaijan. Underdevelopment of the cates (approximately 544 people) are based cates were inclined towards this area). But less chance of winning their case. This is 2. Only the presidential election of June 1992, which was won by the candidate of the nationalist countries, in addition to structural problems, legal profession has a negative impact on in the capital, Baku. The remaining few are since 2010, because of the mounting pressure particularly important in criminal cases where democrats who remained in office for one year, is another main challenge faced by human rights HRL, which is a new profession even in the based in the regions of the country. Given the on civil society by the Azerbaijani authorities an individual’s liberty may be at stake. considered partly democratic. lawyers is intentional and arbitrary violations international system. demographics of Azerbaijan, it shows that the and disbarment of the advocates undertaking 3. For example, the Institution of Ombudsman, judicial self-governing bodies, administrative committed by the national authorities. number of advocates per 100,000 people is political cases, the number of advocates In administrative cases too, the courts see courts established (by new adopted legislation), Litigation and advocacy in Azerbaijan very low. According to the 2014 report of the engaged in HRL has decreased even further themselves as dependent on executive authori- and progressive legislative amendments passed to municipality, NGO registration, the Constitutional Political system of Azerbaijan European Commission for the Efficiency of (the number of advocates pleading such cases ties, though not as much as in criminal cases. Court, general courts and other specific legislation In order to look at the problems of HRL, it is Justice (CEPEJ), the number of advocates in on a regular basis is about ten people at best Therefore, they are not inclined to satisfy the (by Parliament) as well as some progressive steps in penitentiary service (by domestic authorities); and Azerbaijan is a young post-Soviet country, first of all necessary to understand how the Azerbaijan per 100 thousand people is 8.9, in the whole country). Furthermore, consultant claims of citizens against Government agen- legislation on freedom of information and rights of which gained its independence in 1991. legal profession is regulated in Azerbaijan and which is the lowest figure amongst Council of lawyers engaged in HRL in many local and cies. This fact again reduces the tendency to detainees was adopted. 4. http://goo.gl/fdQGEG Its political system preserves the legacy of what the current practical situation is like. Europe member states.7 The reason for such international NGOs operating in Azerbaijan in work with lawyers engaged in HRL. 5. In Azerbaijan, the term ‘lawyer’ also applies to Soviet totalitarianism to a significant extent. a small number of advocates in Azerbaijan 2000s. However, due to the serious Govern- civil servants working in law enforcement agencies Moreover, the corrupt relationships which In Azerbaijan, ‘lawyering’ is an umbrella notion, lies in the legislation governing the activity of ment crackdown on NGOs and the de facto As for civil cases, it should be noted that the and the justice system; they will not be discussed in this article. became entrenched in Azerbaijan during the which includes advocates specialising in a advocates and its restrictive application by the ban on the activities of NGOs in Azerbaijan Azerbaijani judiciary is seriously corrupt in deal- 6. http://goo.gl/1mejcp 8 16 Soviet period are still prevalent in the current certain area (who are entitled to plead cases in leadership of BAA. since 2013, many consultant lawyers opted ing with such cases. Therefore, in this area 7. Ibid. political environment. Under the influence court in a certain field) and lawyer-consultants out of engaging in HRL (the current number too, ordinary citizens who wish to successfully 8. In Azerbaijan, the activity of advocacy is governed of the above-stated factors, Azerbaijan’s (mainly referred to as ‘representatives’ in Azer- However, the problems of advocacy are not lim- of such consultant lawyers is unknown, but is resolve their cases stay away from HRL lawyers by the Law on Advocates and Advocates’ Activities, which was passed in 1999. See http://goo.gl/1v8s4j. 13 political system represents a ‘competitive baijan), who engage in the practice of common ited just to the low numbers. Formation of the estimated to be very low). who would offer legal assistance to them. 9. http://goo.gl/bUKdLC authoritarianism’ characterised by the law but are not legally authorised to engage in Bar, admission of advocates and disciplinary 10. http://goo.gl/1v8s4j hegemony of the elite groups, successors of some areas. Those involved in academic legal proceedings against them are also problematic. Thus, the first and foremost challenge of Another cause of the underdevelopment of 11. http://goo.gl/zvMfHv the Soviet nomenklatura.1 This fact in turn activity at institutions of higher education and The current BAA was formed in 2004 and there engaging in HRL in Azerbaijan is that the HRL in Azerbaijan is citizens’ inadequate 12. http://goo.gl/1mejcp rules out the possibility of holding free and scientific research are also included by the are serious problems with the legitimacy of its authorities, whether directly or indirectly, put awareness of the area. HRL is relatively well- 13. Author’s own estimate democratic elections expressing the will of term ‘lawyer’.5 For the purposes of this article, formation.9 Moreover, admission of advocates pressure on civil society and persons engaging understood in the capital city Baku. However, 14. http://goo.gl/TCHOxm the people during this period of so-called the term ‘lawyer’ is limited to advocates and depends on the subjective will of the present in HRL, coupled with the overall climate in the lack of awareness remains a problem in many 15. http://goo.gl/hqepri 16. http://goo.gl/Wp5TwL independence.2 Although for a time some consultant-lawyers (representatives). leadership of the BAA and an objective testing country which deters lawyers from providing regions. This fact reduces citizens’ access 17. Currently there are 97 judgments finding viola- serious steps were taken towards progressive system for entering the profession does not assistance on human rights matters. to HRL. In the past, civil society projects tions of the ECHR in Azerbaijani cases. In these reform of Azerbaijan’s legislation (itself a In Azerbaijan, only lawyers who have the play an important role here.10 Disciplinary could somewhat fill this gap, but this is not cases the ECtHR found serious violations of the rights to freedom of expression, freedom of associa- remnant of the Soviet era) to maintain good status of ‘advocate’ and are members of measures against advocates also depend on the However, there are also other challenges of the case anymore. Recent repression in Azer- tion and free assembly, liberty, fair trial, property, relations with Western countries in foreign the Bar Association of Azerbaijan (BAA) are preconception of the BAA or the Government. engaging in HRL. The most significant of baijan against civil society, and amendments free elections and the prohibition of torture. In some cases (for example Ilgar Mammadov v Azerbaijan policy and in connection with membership entitled to act as representatives in all types In the last eleven years, a number of advocates them is that the prospect of winning cases to NGO and funding legislation, mean that (No. 15172/13), 22.05.2014 and Rasul Jafarov v of the Council of Europe, these progressive of legal cases. Only advocates can provide representing defendants in political cases have involving HRL within Azerbaijan’s domestic such projects can no longer be executed by Azerbaijan (No. 69981/14), 17.03.2016. The Court, unusually, found a violation of Article 18 ECHR. steps were not realised in practice.3 legal assistance in all criminal, administrative been arbitrarily disqualified.11 The current judicial system is very small. International independent civil society representatives.

6 EHRAC BULLETIN | SUMMER 2016 EHRAC BULLETIN | SUMMER 2016 7 Rasul Jafarov wants to continue leading his If Azerbaijan is a human rights organisation and campaign- ing without fear that his activities will be condemned as a challenge to the integrity of democracy, why were we the Azerbaijani state, resulting in his charge of ‘illegal entrepreneurship’. Teaching about the Universal Declaration of Human imprisoned for our views? Rights is not a crime in any country with a functioning democracy. Reflections on the rule of law in Azerbaijan Anar Mammadli wants to continue educating Intigam Aliyev, Lawyer and Founder of Legal Education Society the population about civic rights, to enhance Rasul Jafarov, Chairman and Founder of Human Rights Club voter education and to work on the reform of Anar Mammadli, Chairman of Election Monitoring Centre the electoral system. The last time he tried to do this, he was charged with tax evasion and In recent months, the Azerbaijani authorities Those, like us, who have been released, using his office to falsify presidential election have released a number of imprisoned human cannot fully enjoy our own freedom until the results. Any functioning democracy should rights defenders, including the authors of this other political prisoners are released. The allow such activities without fear that it is article. However, with dozens of political pris- rule of law must be respected in our country being undermined. oners still behind bars, their release cannot and criminal charges should not be used as be interpreted as a sea change in a cover for politically-motivated detentions of Only once all Azerbaijani political prisoners government attitudes towards critical voices. the regime’s opponents. are released, there is proper respect for the rule of law, and NGOs are allowed to operate in A few hours before Rasul Jafarov was pardoned, a truly independent fashion, will we be able to If there is no respect for the European Court of Human Rights (ECtHR) consider our country a functioning democracy. the rule of law, if we declared his detention to be politically moti- vated.3 The ECtHR also established that his Intigam Aliyev is a lawyer, Rasul Jafarov is a cannot enjoy basic arrest and pre-trial detention from 2 August human rights activist, Anar Mammadli is the human rights, then our 2014 onwards was unlawful (Article 5 of the head of an election monitoring group. EHRAC European Convention on Human Rights); is supporting partner lawyers in Azerbaijan in freedom is subject to more importantly, it recognised that the actual litigating Intigam’s and Rasul’s cases, among the whimsical pardons purpose of his detention was to punish him for others, at the European Court of Human his human rights activities, under Article 18. Rights. These cases concern the legality of and arbitrary decisions It is the first time that the Court has found a their arrests and detention; the conditions of Azerbaijani courts, violation of Article 18 based on the repression of their pre-trial detention, and transport of human rights defenders as a result of their between the detention facility and the domes- not inalienable rights human rights activity. The same verdict is tic court; and the way in which their trials were that we are born with. expected for Intigam Aliyev4 and Anar Mam- conducted. Aside from the judgment delivered madli5, whose cases are pending at the ECtHR. in Rasul’s case on 17 March 2016, judgments This is all theoretical, though: the detention of are pending in all of these cases. We are now home with our families, but Mammadov had already been declared illegal by that was only a recent development. Until ECtHR back in May 2014. The Azerbaijani Gov- This article has been reproduced, with some recently, all three of us were behind bars with ernment hitherto paid no heed to that verdict. editorial changes, courtesy of the Guardian sentences of between six and seven-and-a-half News & Media Ltd. A version of this article years, prosecuted on trumped-up charges. Two If there is no respect for the rule of law, if was originally published on 31 March 2016. of us were pardoned in the amnesty of Novruz we cannot enjoy basic human rights, then our holiday on 17 March 2016, when 12 other freedom is subject to the whimsical pardons Notes

political prisoners were also set free. A third, and arbitrary decisions of Azerbaijani courts, 1. http://goo.gl/tMVjDT Intigam Aliyev, had his sentence reduced to not inalienable rights that we are born with. 2. This is despite a 2014 judgment from the European five years on probation on 28 March 2016. We are all active in different areas of civic Court of Human Rights, finding a violation of Mr Mammadov’s rights under Articles 5, 6 and 18 ECHR: society, and all of them are perfectly legal in Ilgar Mammadov v Azerbaijan (No. 15172/13), We were not the last political prisoners in a functioning democracy. If Azerbaijan is to 22.05.2014, http://goo.gl/E9O3RN. Azerbaijan. Many journalists, politicians, be considered as such, the Government must 3. Rasul Jafarov v Azerbaijan (No. 69981/14), 17.03.2016, http://goo.gl/Q2VmKX activists and bloggers are still behind bars. stop interfering with our work. Jafarov and others v Azerbaijan (No. 27309/14), The most prominent, Khadija Ismayilova1, communicated 14.10.15, http://goo.gl/laOyyV investigated the personal wealth of President Intigam Aliyev wants to continue defending 4. Intigam Aliyev v Azerbaijan (No. 68762/14), communicated 19.11.14, http://goo.gl/8vj0sx; Ilham Aliyev and his extended family. She was his clients without being targeted with absurd Intigam Aliyev v Azerbaijan (No. 71200/14), detained in December 2014, charged with false charges such as tax evasion and fraud, communicated 2.2.15, http://goo.gl/znCjah embezzlement and abuse of power, and was which bear absolutely no relation to his 5. Mammadli v Azerbaijan (No. 47145/14), communicated 3.12.14, http://goo.gl/zL560c; serving a seven-and-a-half year sentence, until legal work. He has defended more than 200 Election Monitoring Centre and others v Azerbaijan her release on 25 May 2016. Ilgar Mammadov clients in the ECtHR, and won more than 50 (No. 64733/09), communicated 16.3.16, Anar Mammadli (Top) is also in jail for seven years for daring to be a of his cases. He has continued from behind http://goo.gl/vmBzAD Rasul Jafarov (Middle) 2 Election Monitoring and Democracy Education Centre Intigam Aliyev (Bottom) candidate in the 2013 presidential election. bars, representing dozens more clients. In a and others v Azerbaijan (No. 70981/11), Images courtesy of People He is head of the Republican Alternative functioning democracy, there are no political communicated 15.3.16, http://goo.gl/DaIbYx; in Need’s “Doubling Down opposition movement. prisoners – this is Intigam’s aim. on Repression” exhibition.

8 EHRAC BULLETIN | SUMMER 2016 Moscow – Baku – Tashkent? A comparative view on civil society repression

Kirill Koroteev, Legal Director, Memorial Human Rights Centre

The recent releases of election analyst Anar the same lines as Azerbaijan. Any legal com- grants deemed to be commercial activities. The Mammadli and democracy campaigner Rasul mitments concerning the protection of human only question is whether the train terminates Jafarov on 17 March 2016 (the day Rasul won rights defenders, as well as the rights under in Tashkent, where no independent activity is his case in Strasbourg1) – and on 28 March the European Convention on Human Rights, possible and torture – including against the few 2016, lawyer Intigam Aliyev in Azerbaijan (see will thus be totally disregarded. However, the remaining activists – is rampant. p. 8) - should not be regarded as a sign of an Council of Europe has shown its complete imminent thaw: although these three human inability to protect those who defend its values If there is one thing that the USA, EU and rights defenders are now together with their fam- – for instance, Intigam Aliyev is an expert with European Free Trade Association countries can ilies, friends and colleagues, their convictions the Council-run programme “Human Rights do to prevent or slow down this clampdown on are not erased, and other political prisoners, Education for Legal Professionals” (HELP) – civil society, it is not to share information and including journalist Khadija Ismailova, remain so Russian human rights defenders should not evidence with Russian authorities. The rationale behind bars.2 All four were arbitrarily detained, rely on it in order not to be hugely disillusioned. is clear: such evidence may be used to violate denied a fair trial and convicted on trumped- the European Convention on Human Rights up charges. Their sentences ranged from over In the North Caucasus region five attacks have (ECHR) and Russia’s other international legal five to over eight years in prison. The story of been committed against the staff and offices obligations. Until the 2015 judgment of the activists Leyla and Arif Yunus, whose sentences of the Joint Mobile Groups (JMG) run by the Russian Constitutional Court that judgments were suspended on appeal, is almost the same, Committee against Torture, based in Nizhny from the European Court of Human Rights aggravated by the denial of adequate medical Novgorod.5 None of the attackers has been (ECtHR) need not be implemented if the Con- assistance in detention. identified, let alone prosecuted. Investigating stitutional Court deems them “non-executable”, torture and disappearances and insisting on a violation of the ECHR could theoretically have In all the cases, as international NGO reports prosecution of those responsible has always been remedied by an application to Strasbourg. conclude, the Azerbaijani Government first been a risky engagement; recent events only However, this may no longer be the case, as created a legislative framework which required confirm that in the contemporary environment any ECtHR judgment finding Russia in breach NGOs to register every grant received with the human rights defenders may not only be of the ECHR may now be denied execution, authorities, in order for the grant to be exempt attacked by the prosecutors, but also by well- leaving citizens without access to justice.7 If from VAT.3 The Government also refused to organised mobs enjoying impunity and support Russian authorities understand that the price of register independent human rights groups of the authorities, as was the case with the JMG. obtaining cooperation and evidence in criminal as legal entities and, in violation of its own cases from Europe and America is ensuring rules and procedures, deleted the registered In such dire circumstances Lyudmila Alekseyeva respect for human rights and fair trial before an separate Georgia from South Ossetia – also grants from the register; it then described recently called for more Western support for independent and impartial judiciary, there is a known as borderisation. the NGOs’ activities under the deleted grants Russian NGOs in the Washington Post.6 Contrary chance that they may reconsider this decision. The frozen conflict in as commercial activities, which are subject to popular belief, funding for Russian NGOs has Since August 2008, following the five-day war to VAT. The retrospective demands for the never been abundant, if compared with Western We should not forget that leading Belarusian slow-motion between Georgia and Russia over the breakaway recovery of unpaid VAT constituted the basis NGOs working on the same issues, and even human rights defender Ales Bialiatski was region, Russian and South Ossetian soldiers for criminal prosecutions of all leading human this is shrinking (clearly, no one wants to invest unfairly convicted and sentenced on the basis Border issues in Georgia and South Ossetia have been building fences, establishing rights defenders in the country. in NGOs that are unable – even if for reasons of information provided by the Lithuanian trenches, and installing surveillance devices outside their control – to deliver change). So authorities. We all need to make sure that Monica Ellena, journalist in Tbilisi, Georgia along parts of the administrative boundary line Russia, in turn, suppresses NGOs with the so- Ms. Alekseyeva’s call must be supported, the train carrying Russian civil society does (ABL) that separates Georgia from the de facto called ‘Foreign Agents Law’, which has attracted because not supporting Russian civil society not stop in Minsk. independent republic. The process stepped much attention and resulted in many hefty fines is tantamount to leaving it to the whim of the up in 2013. Today about 55km, roughly 12% and NGO closures. Although there has been powerful carnivore that is the Russian executive. Notes The recent breakout of overt military con- Georgian capital. In summer 2013, the elderly of the whole ABL is fenced,1 according to the only one criminal prosecution against Lyudmila frontation in the Nagorno-Karabakh region couple woke up one morning and discovered European Union Monitoring Mission (EUMM) 1. Jafarov v Azerbaijan (No. 69981/14), Kuzmina of the Samara-based Golos-Povolzhye,4 But more than funding, the treatment of Rus- 17.03.2016, http://goo.gl/sGpjIl once again brought to the surface the fragile that geography was being re-written. which was set up after the 2008 conflict to dropped because of an amnesty, every novel sian NGOs needs to be subject to the rule of 2. Khadija Ismailova was freed on 25 May 2016. balance that communities endure along the monitor the ceasefire.2 way of applying the Foreign Agents Law is first law. Crimes against NGO staff should be inves- 3. For example: https://goo.gl/uketWs; and lines of the conflicts left behind by the Soviet “Russian soldiers came along one day and http://goo.gl/Lc8D9z tried against Golos and then generalised. Just tigated – if for no other reason than because Union. The frozen conflicts, as they have been told me I was now in South Ossetia. ‘What The borderisation is separating communities, 4. On 27 June 2016, a criminal case was also like Azerbaijani human rights defenders, Ms. all crimes should be investigated. It would be opened against Valentina Cherevatenko (Women of labelled, have been more about fire than ice, do you mean?’ I asked them. ‘I’ve lived here villages and families like Vanishvili’s whose the Don) for alleged “malicious evasion of duties Kuzmina faced charges of unpaid VAT after the better if the laws governing civic activities were imposed by the law on non-profit organisations and civilians struggle to move on with their 80 years and it was always Georgia.’ ‘It’s relatives live on the other side of the fence, on tax inspectors retroactively decided that the abolished, but the situation is so dire that, if performing the functions of a foreign agent”. day-to-day lives. South Ossetia now,’ they replied”, rants Davit Georgian-controlled territory. Cemeteries are grants of the NGO she led constituted com- they were to be foreseeably applied, it may well https://goo.gl/reYVrj across the razor wire fence that now cuts his not spared – in 2013 the fence ran through 5. http://goo.gl/owJUEh mercial rather than grant income. be met with relief by many. Not only is no one In the suspended fight between Georgia house off from the rest of the hamlet, also the graveyard in the village of Ditsi, and the 6. https://goo.gl/qOJmXb rushing to provide these minimum conditions 7. Russia’s Constitutional Court has recently ruled and the breakaway region of South Ossetia, known as Bobveni. path was changed following negotiations from The similarities between Ms. Kuzmina’s for the functioning of civil society, but also it that it was “impossible to implement” the final Davit Vanishvili is one of the symbols of this the EUMM. The issue is constantly on the ECtHR judgment in Anchugov and Gladkov v Russia case and those of Azerbaijani human rights seems the opposite situation is on the way. (Nos. 11157/04 and 15162/05) 04.07.2013, in endeavour. Eighty one-year-old Vanishvili, an The energetic 81-year old farmer personi- agenda of the Joint Incident Prevention and defenders show that the Russian authorities The next stop for the train carrying Russian which the ECtHR found that Russia’s blanket ban ethnic Georgian, and his wife, an Ossetian, fies the human price of what both Georgian Response Mechanism (IPRM), a regular meet- on convicted prisoners’ voting rights was incompat- may consider putting in motion criminal civil society may well be Baku, with prison sen- ible with the ECHR. have lived all their life in Akhali Khurvaleti, a authorities and the international community ing set up in February 2009 as a result of the prosecutions of human rights defenders along tences for retroactively claimed unpaid VAT for hamlet about 60 kilometres west of Tbilisi, the regard as a slow-motion plan to physically Geneva International Discussions, launched

10 EHRAC BULLETIN | SUMMER 2016 EHRAC BULLETIN | SUMMER 2016 11 in response to the 2008 conflict.3 Held in a regular pattern. Most Georgian detainees in against peacekeepers, destruction of property tent in the village of Ergneti, which sits on the Tskhinvali are farmers, seeking wandering and pillaging [were] allegedly committed in demarcation line, the meeting is co-facilitated cattle, picking up wood, and visiting their the context of an international armed conflict by the EUMM and the Organisation for the orchards. “How can a cow know where the between 1 July and 10 October 2008.”11 Security and Cooperation in Europe (OSCE); it line is?” one farmer in Dvani complained. aims to discuss mainly practical issues affect- “You go and chase your wandering cow and Georgia joined the ICC in 2003 and has ing the communities along the ABL.4 you end up detained in Tskhinvali.”8 since been obliged to cooperate fully with the Court. Russia is not bound by the same obli- The fence is yet another reminder that The Georgians and Ossetians co-habited gation as it never joined the Court. It is highly geography is an elastic concept in the South peacefully for decades. The Vanishvilis are unlikely that Tskhinvali will grant access to Caucasus, which features a jigsaw of political just one example of the numerous inter- its territory. Under the Court’s rules, the ICC realities and de facto entities. In this respect, ethnic marriages. Yet, the political narrative prosecutors have the mandate to impartially the USSR did not pass away quietly. In the on both sides remains highly polarised. investigate the alleged crimes by all parties early 1990s, as the Soviet dream was in meltdown, Georgia crashed. The two autono- mous regions of Abkhazia and South Ossetia unilaterally declared their independence, “How can a cow know and the country slipped into two civil wars that left about 300,000 Georgians internally where the line is? You go displaced (about 6% of the total population)5 and 20% of Georgia’s territory outside Tbilisi’s control.6 For decades the regions lived as de and chase your wandering facto independent statelets, internationally unrecognised. The military confrontation in cow and you end up 2008 resulted in Moscow’s recognition, with just a handful of island states in the Pacific detained in Tskhinvali.” Ocean, Venezuela and Nicaragua following in Moscow’s footsteps. As for Tbilisi, the border with its former autonomous regions remains no more than an administrative demarcation By July 2015, claims of land grabbing in the conflict, regardless of the nationality occupied by its northern neighbour’s troops. contributed to the growing borderisation. of the person allegedly responsible. However, Georgian authorities accused Russia of in a briefing on 29 January 2016 the Russian The six-point peace agreement brokered in nibbling away at its territory as new signs Ministry of Foreign Affairs’ spokeswoman 20087 did not spell out the precise boundary marking the “South Ossetian border” Maria Zakharova accused the ICC of bias: between the sides and, since each side refers appeared9, pushing the self-declared bound- to different maps, there is disagreement ary a few hundred metres deeper into the “The ICC prosecutor has placed the blame about precisely where the South Ossetian Georgian territory and marking off a piece of with South Ossetians and Russian soldiers, border lies. For instance, the district of land that includes a 1.065 kilometre section taken the aggressor’s side, and started an Tskhinvali has been cited in a proposal by the of the key Baku-Supsa oil pipeline.10 investigation aimed against the victims of Boundary Commission of the South Ossetian the attack. Such actions hardly reflect the Autonomous Region dating to 21 December Calls from scores of diplomats visiting the ideals of justice.”12 1921, as well as a general staff map from fence in support of Georgia’s ‘territorial 1984. It is a sensitive issue: Tbilisi does integrity’ have fallen on deaf ears. The bor- Such comments indicate that the ICC’s not engage in any demarcation talks since derisation will not result in the conflict’s thaw investigation is not going to be an easy task. defining the boundary clearly would be an as the issue is not critical for the Kremlin, Meanwhile, people like Davit Vanishvili and implicit recognition that there is a legitimate which considers it ‘resolved’. Meanwhile the his family live on edge, fearing that the fragile boundary in the first place. authorities in Tskhinvali state that they are balance will be broken again.13 preserving what they consider to be the state Before 2008, that did not matter as much. border following international recognition by Notes The administrative line was porous, and some the aforementioned states. 1. http://goo.gl/tmqDgF freedom of movement was guaranteed – farm- 2. https://goo.gl/pPEqkE ers were able to access their land, elderly Despite being crucial for the Georgian Gov- 3. http://goo.gl/b1DavM people like Vanishvili could cross to collect ernment, the issue had not received much 4. https://goo.gl/obYZUl their pensions from the Georgian State. For coverage in the international media, until 5. http://goo.gl/91D34C years Ergneti hosted a big market where January 2016 when judges of the International 6. http://goo.gl/wsa5Yb Georgians and Ossetians could trade their Criminal Court (ICC, based in The Hague) 7. http://goo.gl/Cr9Kxf crops and cattle. The market was closed in ordered an investigation of alleged crimes 8. EHRAC and the Georgian Young Lawyers Associa- tion are taking the case of Mekarishvili and others 2004, but people were still relatively free to committed during the 2008 war. This is the v Russia, in which 19 applicants from Dvani argue move. The 2008 conflict changed the dynam- Court’s first investigation outside the African that they have lost access to their farmland and property, because of the barbed wire fences erected ics and somehow pushed the frozen conflict continent. Judges stated there was reason to mark the de facto border of South Ossetia. into meltdown. to believe that: “…crimes against humanity, 9. https://goo.gl/BbK2Zk such as murder, forcible transfer of popula- 10. http://goo.gl/vhbFJR Border crossing rules became stricter, and tion and persecution, and war crimes, such 11. https://goo.gl/1JYOJ3 12. http://goo.gl/gye2tm arrest and detention of Georgian nationals as attacks against the civilian population, 13. http://goo.gl/flenQW on charges of illegal crossing became a wilful killing, intentionally directing attacks

EHRAC BULLETIN | SUMMER 2016 13 For anyone wishing to enter the field of human rights, gaining relevant EHRAC continues to grow and attract accolades for its work, therefore work experience is vitally important. It is therefore essential that human continuing to be an organisation where interns can be sure of an enjoy- rights organisations offer placements to nurture the next generation of able yet fruitful professional experience. The value of confident, competent and keen human rights lawyers and activists. EHRAC has been a trailblazer in human rights litigation in many ways, As in many NGOs, interns make an invaluable contribution to all areas and has been building the capacity of students and professionals of EHRAC’s work, often going above and beyond what we ask them internships through its well-developed internship programme. For over a decade, to do. We would like to thank all the interns and volunteers who have EHRAC has offered not just legal internships, but also placements worked with us over the last thirteen years, and invite them to get focusing on ‘NGO management skills’ and translation. With over 180 in touch with us, and let us know what they are doing now. (See p.28 Seven stories from EHRAC’s former interns former interns, it is not surprising that many have gone on to pursue for how to apply for an internship.) significant human rights work – ranging from litigation at the European Shoaib M Khan, Former Intern, Human Rights and Immigration Lawyer Anahit Simonyan, CEO and Court of Human Rights (ECtHR), to setting up NGOs, completing PhDs Founder and teaching human rights law. , Human Rights Education Center

I completed my internship with EHRAC in 2014 after my Master’s in Human , Rights at the University of Essex. EHRAC has Lucy Charman, Translator an outstanding team of lawyers and my work with them Nadia Volkova, Lawyer United Nations has been one of my best professional experiences to date. As a legal intern I assisted EHRAC’s legal Helsinki Human Rights Union team with their cases, gaining first-hand knowledge , Ukrainian During my internship in EHRAC’s programme of human rights strategic litigation. For me, this I interned at EHRAC in 2009, where my tasks team in 2015, I undertook a wide variety of became an exciting opportunity to work on issues included liaising with partner organisations in tasks. These ranged from writing a report on in which I have always had a strong interest. I can Russia on their joint litigation, compiling a case the situation of refugees and internally displaced database and drafting case summaries for the EHRAC Bulletin. I say with confidence that the skills and knowledge have since qualified as a barrister at the Bar of England and Wales, persons in Nagorno-Karabakh, to conducting fund- I gained laid a solid foundation for my growth and completed a traineeship at the ECtHR, and worked at the Directorate raising research, compiling information for donor reports and development. Since returning to Armenia, I have of Human Rights and Rule of Law at the Council of Europe. I then compiling expenses claims for the European Court. Given my been involved in grassroots advocacy work for the undertook a legal internship at the Mississippi Office of Capital professional background as a translator, I also translated and protection of women’s rights and the development Post Conviction Counsel where I assisted attorneys in defending et, Freek van der V summarised Russian-language material. I found the internship of awareness-raising projects to change the existing the civil rights of death row prisoners. I now work for a Kiev-based Post-Doctoral Research to be an invaluable experience, which reinforced my desire to discriminatory narrative and practice. I am the founder human rights NGO, representing clients before the national courts , University of British work in human rights. Before joining EHRAC I had worked as of an NGO, the Human Rights Education Center, and and the ECtHR, and preparing submissions to the International Fellow a translator at the United Nations in New York and, for the Project Coordinator at the Women’s Resource Centre Criminal Court. As EHRAC is our partner organisation, we jointly Columbia o moment, I’ve returned to that - my plan is to look for human Armenia. It has been a pleasure to stay in touch with represent clients at the ECtHR and members of our organisation rights opportunities here. My time at EHRAC gave me a real EHRAC, and I am particularly happy to be involved in regularly participate in EHRAC trainings. The internship helped me I interned at EHRAC in 2011 and continued t insight into the workings of a human rights NGO, which I hope several joint activities in Armenia, aimed at building gain invaluable first-hand experience of working on cases from the volunteer from a distance whilst working on my will help me to achieve my dream of living in New York and the capacity of local lawyers to bring about change region from the European perspective, and develop an understanding PhD at the University of Helsinki. My research working in human rights! through strategic litigation. of international law procedures, including the ability to incorporate explored how human rights lawyers litigate before European standards into the national approach. the European Court of Human Rights on behalf of relatives of the disappeared in Chechnya. EHRAC was therefore the place to go. The intern- ship helped me understand how an international network of legal professionals can be built from scratch and managed on a daily basis. My short time at EHRAC laid the groundwork for my current research and developed my motivation to bring Lize Glas, Assistant Professor of Shoaib M Khan, Human Rights academics and human rights practitioners closer. I defended my PhD in 2014 which resulted in European Law, Radboud and Immigration Lawyer my publishing four articles in international human University 1 I was a legal intern at EHRAC in 2011. At the rights journals, all of which mentioned Ithe am worknow time, I was finishing my LLM and had already vetisyan, Implementation of EHRAC or its in-country partners. I started my internship with EHRAC during Grigor A completed internships at other human rights , Russian Justice Initiative working as a postdoctoral research fellow at the my LLM in International Human Rights Director Law at the University of Essex in 2010 to put NGOs. I assisted EHRAC’s lawyers with their - Liu Institute for Global Issues at the University of my theoretical learning into practice. During my internship, I British Columbia, where I will continue to study litigation, including by creating a database of summaries of My first acquaintance with EHRAC was in 2006 at a analysed many cases from the European Court, which enabled how Russian lawyers protect citizens accused of all Grand Chamber decisions in 2011. I was also given the lecture given by Professor Philip Leach at the Univer me to gain a better understanding of how the Court reasons its treason, journalists at risk and NGOs under the opportunity to get involved with EHRAC’s legal bulletin, which sity of Durham, where I was studying for an LLM. The judgments. After I finished my LLM and internship, I went on to ‘foreign agent’ law. entailed fact-checking case notes and articles. Although I went announcement that EHRAC was looking for interns did complete an internship with the AIRE Centre, following which I into the office only one or two days a week, I was made to feel not escape my attention. After some time in academia, moved to Cyprus, where I was an intern at the UN High Commis Notes sion for Refugees. In 2011, I returned to the Netherlands for an a part of the team and had the pleasure of working with some the internship at EHRAC came as a welcome change and a way back internship at the Netherlands Helsinki Committee. I then started- particularly committed and enthusiastic lawyers. It is a credit into legal practice. My responsibilities during the internship included 1. Freek’s articles can be found here: http://ehrac. to work at the Radboud University as a PhD candidate, which to the team that, despite their extremely heavy workloads, research and translation. Six months later, I applied for and was offered - org.uk/RKdlb resulted in my book entitled The Theory, Potential and Practice they are able to make time for their interns and offer them a fulfilling experience. I then gained further human rights a full-time position as a lawyer on the Moscow-based EHRAC/Memorial of Procedural Dialogue in the European Convention on Human s Human Rights Centre project. Interning at EHRAC helped improve my Rights System (Intersentia, 2016). While writing my thesis, I experience and qualified as a solicitor. In 2013, I set up a law understanding of the legal challenges of human rights protection. Cur worked as a part-time project assistant for the AIRE Centre and firm where I litigate immigration, asylum and human right rently, I am a practising lawyer and member of the Moscow Regional completed a bachelor’s degree in Dutch law. Since 2015, I have cases. My experience at EHRAC has undoubtedly stood me in Bar Association, and I lead a project focused on the implementation of been Assistant Professor of European law at Radboud University. good stead in my subsequent positions, but, more than that, I European Court judgments at the Russian Justice Initiative. feel pleasure in having been part of such an organisation and having remained in contact.

14 EHRAC BULLETIN | SUMMER 2016 EHRAC BULLETIN | SUMMER 2016 15 of voter lists; carousel voting5; intimidation and different TECs have identical wording. Since violations of their rights or rights of another Double standards in applying the Venice violence in respect of independent citizen the process of writing these decisions and person, and any person whose individual elec- observers and media representatives; changing distributing them to TECs takes time, the TEC toral rights have been violated. These rules the ballots during counting; and interruptions decisions are normally adopted on the last day do not comply with the Venice Commission Commission Code of Good Practice in of the counting process. of this deadline. standards as reflected in the same CGPEM, since Section 99 provides that “Standing in Compliance with international standards The TEC decision is normally made public by electoral appeals must be granted as widely pinning it on the wall of the TEC, which makes as possible. It must be open to every elector Electoral Matters The complaint procedure initiated by COI it outright impossible for the complainant to in the constituency… to lodge an appeal.”8 organisations and two political parties was track the timing of publication of the decision, The case of the 2015 Armenian constitutional referendum unsuccessful. In a report released on 5 Febru- as it may be pinned on the TEC wall at any Despite this reluctance of the Armenian ary 2016 the OSCE/ODIHR RET criticised the point on the day it is adopted, or the following authorities to comply with the above two Lousineh Hakobyan, President, Europe in Law Association referendum process and made a number of day. Moreover, the complainant may be denied recommendations of the CGPEM as reflected recommendations.6 access to the building if it is shut, for example, in the RET’s report, for about 13 years the on a non-working day. Armenian authorities have relied on Section 54 of the CGPEM, which provides “…since The COI reported an The complainant then has practically no time abstention may indicate a political choice, lists unprecedented scale to hand-deliver an appeal to the CEC if s/he of persons voting should not be published” to wants it to have any impact whatsoever on the justify its refusal to publish the signed voter of the proposed draft, there was practically no of electoral fraud, results of elections since the CEC finalises the lists after each election. This persistence opportunity for the public to have any mean- vote-rigging and other results of elections on the seventh day follow- deepens public mistrust in the electoral ingful engagement in the consultation process. ing the day of voting. In the period following process given that there is a wide perception violations, including the 2015 constitutional referendum this was that elections are regularly falsified by means It was subsequently rushed through the ballot stuffing, simply impossible to do. In view of the fact of voting on behalf of hundreds of thousands Armenian parliament, discussed on 11 that 13 December (7 days after the election) of Armenian citizens residing abroad. September 2015 in a four-hour meeting of intimidation, was a Sunday, the staff of the CEC simply the Standing Committee on State and Law manipulations of refused to accept the appeals from a number Conclusion and then deliberated in the course of only of appellants on the pretext that Sunday was a one four-day session of the parliament, on voter lists, carousel non-working day. In the meantime, the CEC sat On 15 April 2016, the negotiations between 15-18 September 2015. Given the fact that voting, changing the in a session on that very day to first consider the authorities, non-ruling parties and civil the overwhelming majority of MPs in the the complaint of one of the opposition parties society representatives concerning the new Armenian parliament were from the ruling ballots during on annulling the results of the referendum and draft of the Electoral Code ended with the RPA (headed by President Serzh Sargsyan), counting, and then to finalise the results of the vote. This authorities once again refusing to meet key the PA and the ARF, the ‘yes’ vote in the session was broadcast throughout Armenia. It public demands to permit publication of the parliament was not difficult to secure. Fol- interruptions of the was only after the Ombudsman’s intervention signed voter lists in the new Code. This is in lowing the approval of the draft by a qualified counting process. that a staff member of the CEC accepted the spite of the very first recommendation of the Opposition supporters rally against the results of the constitutional referendum in Yerevan on 7 December 2015 parliamentary majority on 5 October 2015, appeals from the representatives of a number OSCE/ODIHR RET’s post-referendum report Serzh Sargsyan appointed the date for the of observer NGOs. However, this was done only that Armenia should carry out a reform of referendum – 6 December 2015. The people Armenia has a three-tier system of electoral after the CEC had summed up and announced electoral legislation in an inclusive manner On 6 December 2015, a referendum was held Yerevan State University;3 the Prosecutor were asked to vote either ‘yes’ or ‘no’ for the commissions. The highest-level commission the results of the referendum. encouraging all stakeholders to make every in Armenia for the adoption of a new constitu- General nominated by the RPA and elected in proposed draft of the new constitution. is the Central Electoral Commission (CEC), reasonable effort to build broad consensus tion. This article intends to demonstrate how a controversial election by the Armenian par- composed of seven members appointed by This practice is contrary to the Venice Com- over the reform. The consensus thus failed the Government of Armenia failed to comply liament;4 the President of the Constitutional The constitutional referendum the President. The next level is the Territo- mission’s CGPEM, which states: “… decisions and electoral commissions will continue their with some of the OSCE/ODIHR1 Referendum Court of Armenia and his advisor. With such rial Electoral Commission (TEC) composed on the results of elections must also not take existing practice of non-disclosure of signed Expert Team’s (RET) priority recommendations composition, it was inevitable that the Com- The whole process and the amendments them- of seven members appointed by the CEC. In too long, especially where the political climate voter lists to the Armenian public. It remains by resorting to discretionary interpretation mission was not independent and that any selves were heavily criticised by three other Armenia there are 41 TECs according to the is tense. This means both that the time limits to be seen whether in these circumstances and application of the Venice Commission proposal put forward by it would be dictated political parties in the parliament (the Armenian number of current constituencies. The lowest- for appeals must be very short and that the the Armenian people will ever regain trust in standards as reflected in the latter’s Code of by and desirable to the incumbent President. National Congress, the Rule of Law Party and level commissions are the Precinct Electoral appeal body must make its ruling as quickly the electoral processes and, more importantly, Good Practice in Electoral Matters (CGPEM).2 Heritage Party). Active civil society groups also Commissions (PECs) composed of eight as possible. Time limits must, however, be ever succeed in changing their Government in The leader of the second largest party in the expressed their belief that the main reason members, one member appointed by each of long enough to make an appeal possible, to free and fair elections. Background Armenian parliament – Prosperous Armenia behind the ‘constitutional reform’ was the the parliamentary factions and two members guarantee the exercise of rights of defence (PA) – spoke against the reform in 2014. How- intention of the incumbent President to remain appointed by the relevant TEC. and a reflected decision. A time limit of three Notes The ‘constitutional reform’ was initiated ever, after threats of political repression and in power by means of eliminating presidential to five days at first instance (both for lodging 1. Organisation for Security and Cooperation in by Armenia’s incumbent President Serzh possible tax offences against him, in February elections through a national vote, and retaining Appeals appeals and making rulings) seems reasonable Europe/Office for Democratic Institutions and Hu- man Rights Sargsyan, the leader of the ruling Republican 2015, he announced his withdrawal from all behind the scenes leverage through the RPA. for decisions to be taken before the elections.” 2. http://goo.gl/o44l4g Party of Armenia (RPA). It was under his politics. Following this announcement, the Under the Armenian Electoral Code, any post- 3. Serzh Sargsyan is President of the Academic auspices that a ‘Specialised Constitutional leadership of PA radically changed its official The referendum was monitored both by the electoral complaint can be filed to the relevant Standing: observers and proxies Board of Yerevan State University. Commission’ (the Commission) was convened position and started speaking in favour of the OSCE/ODIHR RET and the Citizen Observer TEC on the day of voting or between 12.00 4. See, for example: http://goo.gl/41prP8 (in Armenian only) by a presidential decree in September 2013 proposed draft of the constitution. Armenian Initiative (COI), a local coalition of 28 NGOs and 18.00 of the day following the voting. The second problematic aspect is the issue of http://goo.gl/6zJdhK (in Armenian only) to develop first the concept and later the Revolutionary Federation (ARF) was the third formed with a view to monitoring the refer- TECs then have up to five days for adopting standing in bringing complaints to higher-level http://goo.gl/HK8KhF 5. A practice of transporting voters to different poll- draft of the new constitution. Two of the nine party to support the new draft. endum. The COI reported an unprecedented decisions on these complaints. In view of the commissions. Under the Armenian Electoral ing stations to cast their vote for the same candidate members of this Commission were from the scale of electoral fraud, vote-rigging and other fact that TEC members do not have sufficient Code complaints against decisions, actions (or more than once. Republican Party, and two from the presiden- The final constitutional draft was only made violations, including but not limited to: ballot knowledge of electoral law, their decisions are the inaction) of PECs may be filed by observers 6. http://goo.gl/03oT4v tial administration. The other five members available to the Armenian public on 4 August box stuffing; intimidation of the proxies of the drafted for them by the CEC, as evidenced by and proxies with respect to violations of their 7. http://goo.gl/o44l4g, Section 95 were the Dean of the Law Department of 2015. In view of the volume and complexity supporters of the ‘no’ campaign; manipulations the fact that in most instances decisions of rights; commission members with respect to 8. Ibid., Section 99

16 EHRAC BULLETIN | SUMMER 2016 EHRAC BULLETIN | SUMMER 2016 17 violence against women.12 In response to poor view to eliminating practices and prejudices Preventing and addressing violence enforcement of laws on domestic violence in based on, inter alia, stereotyped roles for Georgia, Ukraine, and Azerbaijan, the Com- men and women) in light of the substantial More than 10 years mittee urged the States Parties to ensure the evidence of gender stereotypes applied by law full application of the same, and thorough enforcement bodies to the applicant.22 The after the Special against women in Russia, Ukraine, investigation, prosecution, and punishment of Committee’s recommendations to Georgia all cases of domestic violence.13 With regards included intensifying awareness raising cam- Rapporteur’s to Azerbaijan, the Committee called on the paigns and introducing a zero-tolerance policy country visit to Azerbaijan, Georgia and Armenia State to set a time frame for ratification of on violence against women, which arguably the Council of Europe’s Istanbul Convention,14 encompass measures aimed at eradicating Russia, a draft Observations and recommendations from the United Nations which is widely acknowledged to be the most gender stereotypes in this context.23 comprehensive regional treaty for tackling law on domestic Kate Levine, Lawyer, European Human Rights Advocacy Centre violence against women (and complementary As noted above, in addition to concluding a to the international standards in the CEDAW country visit to Georgia, the SRVAW has under- violence has still Convention).15 To date, Azerbaijan, Russia, and taken country visits to Azerbaijan (from 26 Armenia have not signed the Istanbul Conven- November to 3 December 2013) and Russia not been adopted tion, and Ukraine and Georgia have signed (in (from 17 to 24 December 2004). Among the by Parliament. November 2011 and June 2014 respectively) issues identified by the SRVAW in her report but have yet to ratify it.16 Although ratification on the mission to Azerbaijan are the predomi- was not referred to in the Committee’s July nance of deeply rooted gender stereotypes and failure to take adequate protective measures 2014 Concluding Observations on Georgia, it their contribution to violence against women, and effectively investigate the victims’ reports The United Nations Convention comprehensive statistics on inci- was expressly recommended by the Committee as well as weaknesses in the law on domestic of prior domestic violence, the cases raise the on the Elimination of All Forms dents of violence against women, in the 2015 decision in X and Y v Georgia, in violence and its application (for example, issue of entrenched gender stereotypes among of Discrimination against Women and underreporting of cases due which the State was found to have violated the provision for issuing verbal warnings to law enforcement officials and the effect of the (1979) (‘the Convention’)1 is The Committee to the perception of this issue as a the rights of the applicants who had suffered suspects; the difficulties in victims obtaining same on the victims and perpetrators. the cornerstone of international ‘private matter’.5 The absence of physical and sexual violence at the hands of long-term protection orders against suspects; human rights law standards on urged all five States meaningful data and inadequate their former husband and father.17 Curiously, and the lack of a gender perspective of law Notes discrimination against women. victim support services were also the Committee has so far been silent on enforcement officials who respond to calls 1. http://goo.gl/Etyj9T 24 The Committee on the Elimination to ensure women highlighted by the Committee in Russia’s lack of intent to sign the Istanbul for assistance from victims). The SRVAW’s 2. Pursuant to Article 18(1) CEDAW Convention, of Discrimination against Women the Concluding Observations on Convention, including in the Concluding report on her mission to Russia highlighted the States Parties’ must submit a report to the Com- mittee within one year of entry into force of the 18 (‘the Committee’) is tasked with Azerbaijan’s fifth periodic report Observations adopted in November 2015. causal effect of embedded patriarchal norms Convention and thereafter at least every four years overseeing the Convention’s victims of violence (adopted in March 2015),6 and attitudes on violence against women; the or as requested by the Committee. implementation, which it does Georgia’s combined fourth and general unwillingness among victims to report 3. X and Y v Georgia (Communication No. Gender stereotypes and other barriers 24/2009), 13.07.2015, http://goo.gl/RzFRgK by, inter alia, reviewing periodic are able to readily fifth periodic reports (adopted in to women victims of violence cases due to the social stigma attached to The Committee has not yet published decisions in reports from States Parties on the July 2014),7 Ukraine’s combined domestic and sexual violence; the barriers for individual cases relating to violence against women 2 against any other of the abovementioned States. progress made at national level. access adequate sixth and seventh periodic reports In all of the abovementioned Concluding women seeking to leave abusive relationships Please see p.24 8 The State reporting procedure (adopted in February 2010), and Observations, the Committee identified to obtain separate housing; and the lack of a 4. Concluding Observations (CO) on the Russian provides the Committee with Armenia’s combined third and the existence of traditional stereotypes and specific legal framework designed to prevent Federation (RF), http://goo.gl/6BSxb2, para 21. an opportunity to identify areas shelters, crisis fourth periodic reports (adopted entrenched patriarchal attitudes regarding the and address domestic violence.25 More than 5. Ibid. 6. CO on Azerbaijan, http://goo.gl/AfuTwv, para 22 where States Parties have failed in February 2009).9 roles, responsibilities, and status of women 10 years after the SRVAW’s country visit, a 7. CO on Georgia, http://goo.gl/42QkLi, para 20 to implement (effectively or at centres, and other in society and domestic contexts, and drew draft law on domestic violence has still not 8. CO on Ukraine, http://goo.gl/Ed3v3X, paras all) the Convention, and publish The Committee urged all five attention to the causal link between such been adopted by Parliament. 26-28 its comments in Concluding support services. States to ensure women victims of stereotypes and violence against women.19 In 9. CO on Armenia, http://goo.gl/CK1Eae, para 22 Observations which are adopted violence are able to readily access its Concluding Observations on Russia, the Conclusion 10. CO on RF, para 23; CO on Azerbaijan, para 23(b)-(d); CO on Georgia, para 21; CO on Armenia, after consideration of reports. adequate shelters, crisis centres, Committee also highlighted the legitimising para 23; CO on Ukraine, para 29 The Concluding Observations also relating to domestic violence, X and Y v Geor- and other support services, and all effect of stereotypical societal attitudes on The CEDAW Committee’s Concluding 11. http://goo.gl/gxZxqa include the Committee’s recommendations to gia (jointly litigated by EHRAC and Article 42 but Georgia to collect accurate and comprehen- harmful practices in the North Caucasus, Observations discussed above help to focus 12. CO on RF, para 22(a)-(b); CO on Armenia, para 23 States Parties on action needed in order to of the Constitution, an NGO in Tbilisi),3 and sive data on the prevalence of violence against such as the abduction of women and girls the attention of these States on particular 13. CO on Georgia, para 21(a)-(b); CO on Ukraine, para 27; CO on Azerbaijan, para 22(a) strengthen implementation. the insights of the UN Special Rapporteur on women and girls.10 Following the SRVAW’s for forced marriages, crimes perpetrated in areas for reform, and continue to serve as 14. The Istanbul Convention was opened for signa- violence against women, its causes and conse- country visit to Georgia from 15 to 19 February the name of so-called honour, and female essential advocacy and awareness raising ture in May 2011. http://goo.gl/QKZQ9c This article examines some of the gaps in the quences (the ‘SRVAW’) following country visits 2015, one of her preliminary recommendations genital mutilation.20 In an effort to address tools within national and international fora. 15. CO on Azerbaijan, para 23(e) implementation of the Convention as identi- to Georgia (in 2016), Azerbaijan (in 2013), was to ensure the collection of disaggregated gender stereotypes, the Committee called on This is especially important in relation to 16. http://goo.gl/yNUJnf fied by the Committee in the latest Concluding and Russia (in 2004). data on violence against women.11 each State to: take proactive and sustained the States’ failures to effectively prevent and 17. X and Y v Georgia, para 11(iii) 18. The Committee’s last Concluding Observations Observations on periodic reports submitted measures targeted at women and men at all address violence against women, an issue on Armenia and Ukraine were adopted before the by Russia, Ukraine, Azerbaijan, Georgia and Prevalence of violence against National legal frameworks levels of society (including religious leaders) to which is still perceived across much of the Istanbul Convention was opened for signature. Armenia. The specific focus of the article is women, data on patterns of violence, eliminate gender stereotypes; increase educa- region (and indeed globally) as of ‘private’, 19. CO on RF, para 19; CO on Azerbaijan, para 20; CO on Georgia, para 18; CO on Ukraine, para 24; compliance with the States’ obligations to and support services for victims Where, as in Russia and Armenia, there is cur- tion and awareness raising efforts (including as opposed to State, concern. Strategic CO on Armenia, para 20 prevent and address violence against women, rently no legislation specifically designed to of public officials) on the prevalence of litigation before the CEDAW Committee and 20. CO on RF, para 23 which is of particular relevance to the strategic The Committee’s Concluding Observations of prevent and address violence against women, gender stereotypes; and encourage the media regional human rights mechanisms is another 21. Ibid, para 20; CO on Azerbaijan, para 21; CO on Georgia, para 19; CO on Ukraine, para 25; CO on litigation pursued by EHRAC and our partners November 2015 on Russia’s eighth periodic the Committee recommended the establish- to portray positive, non-degrading, and non- important tool to address State responsibility Armenia, para 21 21 before regional and international human rights report underlined the prevalence of violence ment of a comprehensive legal framework, stereotypical images of women. In X and Y for violence against women. For example, two 22. X and Y v Georgia, para 9 mechanisms (including the CEDAW Commit- against women, in particular domestic and and mandatory training for law enforcement v Georgia, the Committee found a violation of of the cases that EHRAC is litigating at the 23. Ibid, para 11(b)(ii) tee). This article also briefly considers the sexual violence, as well as inadequate services officials and the judiciary on the effective Article 5(a) of the CEDAW Convention (requir- regional level, together with our partners in 24. http://goo.gl/iuzMSS, paras 4, 65, 66, and 70 Committee’s recommendations in the first for victims (such as crisis centres and shel- implementation of existing criminal law ing States Parties to take measures to modify Georgia, concern the murder of women by their 25. https://goo.gl/d4GiX5, paras 27, 28, 31, 36-38 individual case to be decided against Georgia ters).4 The Committee also identified a lack of provisions which could be applied to cases of social and cultural patterns of conduct with a husbands. As well as dealing with the State’s

18 EHRAC BULLETIN | SUMMER 2016 EHRAC BULLETIN | SUMMER 2016 19 issues, and we saw that it was one of the main here in Ukraine at the national and even local make sure that the sanctions regime operates factors in influencing the change in attitudes. levels. Now it is a bit more on the agenda with intelligently, because at the moment it means Problems on the Crimean peninsula The second was the attitude of host communi- the blockade of Crimea going on. When the that any organisation with links to Crimea 4 Interview with Tamila Tasheva, KRYM SOS ties to IDPs, looking at the main IDP centres. blockade started [in September 2015] there suffers: we have this absurd situation, where was a lot of interest, but only two months later our international donors’ transfers to us are Based on these analyses, we showed that [November 2015], this has fallen through. blocked, because we have “Krym” (Crimea) Graham Donnelly, PhD Researcher, University of Glasgow & Visiting Fellow, European Centre for Minority Issues it was the right moment for civil society to in our name. react, to help build a dialogue between the The Ukrainian Government is not keeping the IDP communities and hosting communities to issue alive and this is reflected in the Minsk We also request that States and organisations avoid conflict and misunderstanding. Agreement. We actively try to keep Crimea on continue to press for international monitoring the agenda, both with our Government but also of the situation on the ground, as this has There have been several incidents where at the international level. been largely absent from the beginning. things have come to a head and open conflict has been a real pos- It would also be beneficial, and 16 November 2015, Kyiv, Ukraine (Offices provided material assistance to the Ukrainian we estimate that around half of these are sibility. For instance, in a small this isn’t just addressed to the UK of KRYM SOS) military who were blockaded in their bases Crimean Tatars; so around 20,000. village near L’viv, the Crimean At first when the IDPs Government, to counter Russian over there. Quite soon after that, in March Tatar community and the local propaganda in the rest of Europe. In the last Bulletin, the author provided an 2014, we hosted our first IDP family from So there have been several waves, but now community have clashed. In L’viv started to arrive, the Get information about Crimea update on the ongoing problems faced by the Crimea. Shortly after, we started having the the people who leave rarely register as IDPs, there have been open discussions out there. We want partner Crimean Tatars now living on the Crimean first people leaving eastern Ukraine as well, because they are afraid of being conscripted about whether there should be a hosting communities were governments to provide credible peninsula under Russian occupation. During and we started to help them. into the military, or concerned about the place of worship for Muslims, information about what is going his recent PhD fieldtrip to Ukraine, the author security of their personal information (that and leaflets with messages like, really welcoming. People on in Donbas and Crimea. met with Tamila Tasheva of KRYM SOS1, one Quite early on we were involved in high-level their details could be stolen). Some of them “if you do not want to hear the of the leading NGOs working on Crimean Tatar advocacy and legislative initiatives. In the might just not feel the need to register. call to prayer in the streets, then were offering rooms for At the diplomatic level, we want issues in Ukraine today, and discussed the ori- summer of 2014, discussions about the new you should not welcome IDPs.” to see a continuation of normal gins and development of her organisation, and law on the occupied territories began, and What, if any, problems are being What we now show in the reports, free, or for minimal prices. rules, and for States to continue the current issues facing Crimean Tatars, not we got involved as an expert organisation on encountered by the IDPs coming from however, is that there are no open to withhold any recognition of only in Crimea but also in mainland Ukraine, Crimea. Then in July 2014, we became imple- Crimea in the rest of Ukraine? conflicts, just isolated incidents.5 the annexed territory, as we have where tens of thousands of people now live as menting partners for the United Nations High Is the European Union (EU) one of seen, of late. For example, France has had a internally displaced persons (IDPs). Commissioner for Refugees on the protection The issues surrounding the IDPs depend on What are the main issues faced by the international actors that you are delegation visit Crimea – it was not official, of IDPs. This was the starting point for the where they are from and the region where people who remain on the peninsula? seeking to influence in this respect? but we need to see solidarity.8 We also saw a Can you tell me about your professionalisation of our activities. From that they end up. It was announced early on that Crimean official allowed to enter Poland, and organisation, why you were point, we have had more than ten ongoing they were ready to host IDPs in L’viv oblast, The pressure from the occupying authorities is Of course. We do not have such a close while they said this was a mistake, it hap- established and what kind of work projects and various projects have already in particular Crimean Tatars, so many people not only directed towards the active Crimean relationship with the EU, though we do have pened.9 We would like to see maintenance of you have been doing? What are the finished. Unfortunately, in February 2016, from Crimea, especially Crimean Tatars went Tatars but the community at large. The main lots of meetings and keep in contact with the the diplomatic blockade of Crimea. main issues at play today in Crimea we mark two years of our initiatives. there. In L’viv oblast, there was a great deal tactic of the occupying authorities is to spread embassies of many Member States and the including around the Crimean Tatars? of sympathy for the Crimean Tatars, because terror and fear among the Crimean Tatar US. We also host many delegations from, for We have heard from so many international So we now have several main directions and this is a region that is well known for being community: either by forcing Crimean Tatars example, the European Parliament, and other organisations that, “yes, we think your work We started on the first day of the Russian fields of our work. One is assistance to IDPs, more sympathetic to the State and Govern- to leave for mainland Ukraine and replacing such organisations, the Council of Europe, is great and important, but we are under so occupation of Crimea. It was started by a including humanitarian, legal, psychological, ment. The motivation for the invitation was them with people from mainland Russia under the European Court of Human Rights and much pressure from Russia, and we can’t work small group of volunteers, based here on and integration assistance. one of patriotism, because of the support of various programmes, where the incomers are so on. We, along with other Crimean Tatar on Crimea now.” the mainland. The main co-founders, three the Crimean Tatars to the Ukrainian State given accommodation and work on beneficial organisations such as the Mejlis (Crimean of them, were all Crimean Tatars: these were Also, in Crimea, we continue to monitor during the annexation. That is why many terms; or by trying to make Crimean Tatars Tatar representative assembly) are continuing Thank you, and good luck with your Sevgil Musayeva, who is now chief editor of the situation on the ground, and we have a Crimean Tatars ended up in western Ukraine passive or compliant and force them to agree to raise these issues. continued work. Ukrainian Pravda; Alim Aliyev, a consultant separate information gathering network for and in L’viv oblast in particular. In central with the occupation forces.6 who is now based in L’viv; and myself, Tamila professional use, which includes journalists Ukraine the Crimean Tatars are mainly However, we see that our efforts and those Notes Tasheva. We realised that there was no infor- on the ground. Generally, we are very active in concentrated in Kyiv, then in Kherson in How do you feel about the Minsk of our partners are not enough; the issue 1. http://krymsos.com/ mation coming out of Crimea at all, so our raising awareness and disseminating informa- the border region. process? Have the actors seeking a continues to fall off the international agenda. 2. http://goo.gl/M9GGJL initial idea was to create a platform, and to tion, in getting news out there about Crimea resolution to the current crisis taken 3. http://goo.gl/eLws5S find and share information on what was going and the armed conflicts in the country. At first when the IDPs started to arrive, the fate of the Crimean Tatars into Last question, what would you like 4. http://goo.gl/o9mLgu on in Crimea. We created a Facebook page – the attitudes of the hosting communities consideration? to see coming from Governments or 5. Ibid. basically the idea was to find out as much as Lastly, we work on Crimean Tatar culture, on were really good, really welcoming. People States, like my own in the UK? What 6. In April 2016, Tamila Tasheva provided the following update: “Searches and arrests of Crimean possible and to analyse that information. At saving the heritage of Crimean Tatars, and pro- were offering rooms for free, or for minimal Unfortunately, Crimean Tatars are not covered sort of involvement or support would Tatars on suspicion of involvement in terrorist or- that time, no one was prepared for occupation, tecting their history, memory and all of those prices. However, with armed hostilities by the Minsk Agreement.7 We are raising this be appropriate? ganisations were resumed by the occupying authori- ties in February 2016. These cases are an apparent so after a month we had a thousand followers things that fall under the banner of culture. in eastern Ukraine, attitudes to IDPs in issue a lot with the authorities and various policy of intimidation and create a negative image on Facebook. Our page was the main, credible general, and to Crimean Tatars as well, other actors. We see that the issue has been We would like to see very firm opposition to of the Crimean Tatars to get them to leave the pen- insula. Activity by the Mejlis of the Crimean Tatar source of information coming out of the penin- How many Crimean Tatars are we started to change. forgotten and we are very disappointed. Of the Russian Federation over their annexation people was prohibited on the peninsula. The point sula. There was so much information coming talking about in Ukraine today? course, most of the discussion at that level is of Crimea and their involvement in Donbas. is that the Mejlis is a representative body of the Crimean Tatars and does not have State registration out, and we had to work hard to make sure Then, from January to March 2015, we pre- about Donbas and this is logical, we under- We do not want Crimea to be recognised as a neither as an organisation nor as a political party. In our stories were reliable. I think afterwards we Overall, there are around 1.5 million IDPs pared a report on the relationship between stand this; however, everything started from part of the Russian Federation. Sanctions are this way, any Crimean Tatar who has ever cooperated with the Mejlis can be pursued by the occupying discovered that maybe only two of the stories in Ukraine, with another 500,000 having host communities and IDPs. At first, attitudes Crimea and Crimea remains occupied. another important issue, and we are sure that authorities.” we put out were not accurate. left for Russia and elsewhere.2 From began to change towards IDPs from the east, these should be continued. In fact, we think 7. http://goo.gl/0KNyHn Crimea, the number of officially registered and then also towards Crimean Tatars. The I would say that generally, we see the issue these should be stricter and more severe, as 8. http://goo.gl/kcrTng We realised quite quickly that we should pro- IDPs is 20,000.3 Unofficially, we estimate report had two elements. The first focussed of Crimea gradually disappearing, both in they are the only means of reinforcing the ille- 9. http://goo.gl/3mZq6V vide direct assistance and, for a short time, we that it is more than 40,000, and, again, on the role of the media in reporting of IDP international political discourse, and also gality of the annexation. However, we need to

20 EHRAC BULLETIN | SUMMER 2016 EHRAC BULLETIN | SUMMER 2016 21 Secondly, the Government refused to acknowl- excessive force by the representatives of law- involved in pending investigation according to edge violations of the substantive limb of enforcement bodies and related judgments the principles established by the ECHR, which Friendly settlements and Articles 3 and/or 2 ECHR, reasoning that given delivered in similar cases by the European raises concerns that the Government does not that only an effective criminal investigation Court are still not implemented. Taking this intend to comply with its undertaking to con- at the domestic level was capable of clarify- into consideration, the applicants do not duct an effective investigation under the UD. ing whether or not the applicants had been believe Georgia will conduct an effective inves- unilateral declarations at the subjected to police or prison staff abuses in tigation into their allegations as undertaken by Conclusion breach of Articles 3 and/or 2 ECHR, they were the State in these cases. not in a position to prejudge the final outcome An effective investigation is a mandatory of the domestic investigation by admitting to Although some of the applicants in the forego- obligation for the execution of the Court’s European Court of Human Rights a violation of the material aspect of Articles 3 ing cases did not agree to the terms of the UDs decisions. GYLA will be closely monitoring and/or 2 ECHR. proposed by the Government, precisely because the State’s compliance with its undertakings A recent trend of the Georgian Government they did not acknowledge substantive violations under the UDs and unless the Government of Articles 3 or 2, and asked the European complies with them in the near future, GYLA Tamar Abazadze, Strategic Litigation Project Coordinator, Georgian Young Lawyers’ Association Court to decide the cases on the merits, the will apply to the Court on behalf of the appli- An effective Court still upheld the Government’s UDs. cants based on Article 37(2) ECHR asking for Where the applicants expressed agreement the applications to be restored to the list. investigation with all the terms made in the Government’s The new Government that came into power resolved with a FS,4 while in the remaining five Cases of Egiazaryan, Mirtskhulava UD, the Court considered that the case could The positive aspect of settling cases through following the parliamentary elections on 1 the European Court approved UDs submitted and Gamtsemlidze is a mandatory be treated as an implied FS between the the FS procedure is that the applicants receive October 2012 unveiled a settlement policy by the Government.5 parties and struck the applications out of its redress more speedily in comparison to adjudi- with regards to applications lodged against In these three cases, the Government obligation for list of cases pursuant to Article 39 ECHR; cating their cases up to judgment by the ECtHR. Georgia at the European Court of Human Based on the seven cases, the present article of Georgia proposed UDs and FS, fully where the applicants rejected the terms of the Some of our applicants welcomed the FS terms Rights (ECtHR). In November 2012, the summarises some of the common features acknowledging human rights violations the execution proposed UDs, the Court struck the applica- submitted by the Georgian Government. It Minister of Justice stated: “it is our aim to of the UDs’ and FS terms submitted by the against the applicants by the State. As tions out of its list of cases in accordance with should be underlined that in cases where our unburden the European Court from Geor- Georgian Government before the European requested by the applicants’ representatives of the Court’s Article 37(1)(c) ECHR. applicants rejected the FS terms submitted by gian complaints and establish a culture of Court and concerns related to them. and to remedy the human rights violations, the Government as it failed to acknowledge the resolving human rights [disputes] inside the the Government undertook to ensure effec- decisions. According to the website of the Committee of violation of the substantive limb of Articles 3 country, so that people are no longer forced Factual background to the cases tive investigations and to pay financial Ministers of the Council of Europe, the Court’s or 2 ECHR, the Government submitted UDs to prove their truth abroad.”1 compensation to the applicants. decisions approving UDs in the foregoing cases reiterating the terms of the FS offer and in The seven cases in which the applicants were The applicants requested that the European have been included in the Committee’s list of all cases under GYLA’s litigation UDs were Statistics from the last three years clearly represented by GYLA and EHRAC concerned Cases of Vakhtang Menabde, Studio Court reject the Government’s UDs based on judgments to be executed, subject to standard adopted by the ECtHR. Based on our cases illustrate a trend by the Georgian Govern- a number of serious human rights violations. Maestro and others, Bekauri and the following arguments: supervision.8 For the purposes of execution discussed above, we are disappointed that the ment of using friendly settlements (FS) and Our first case to be settled in this way con- others, Tedliashvili and others of the Court’s decisions, the Government of ECtHR adopted UDs failing to acknowledge a unilateral declarations (UD) to resolve cases cerned Giorgi Gamtsemlidze who was killed 1. The Government’s undertaking to ensure Georgia paid sums of just satisfaction to the substantive violation of the right to prohibi- lodged at the European Court. As reported by by the use of excessive force by a police The Government of Georgia proposed UDs effective criminal investigation under Articles applicants. As to the Government’s undertaking tion of ill-treatment in cases where based on the Ministry of Justice, 19 cases were resolved patrol officer (in violation of Articles 2, 6, 13 acknowledging all violations of the Convention 3 and 2 is not an effective remedy in the given to conduct an effective investigation into the evidence submitted before the ECtHR it was with a settlement between applicants and the ECHR). In three other cases the applicants rights argued by the applicants’ representa- case, because the facts of the case themselves applicants’ allegations, it has not yet been evident that the applicants had been subjected Government of Georgia in 2013, compared complained, variously, of a violation of Article tives, except for the violation of the substantive will most likely prevent effective investigation fulfilled. The European Court’s decisions in the to police abuse in breach of Article 3 ECHR and with 26 in 2014 and 14 in 2015. Meanwhile 3 in relation to their ill-treatment by law limb of Article 3 (prohibition of torture and and identification of perpetrators, because the cases of Menabde, Studio Maestro and others, injuries inflicted were severe enough to amount the number of UDs made by the Government enforcement authorities during the violent ill-treatment). Similarly, in Tedliashvili the crimes were committed many years ago (7 and and Bekauri and others were published on to ill-treatment under Article 3. and approved by the European Court is as dispersal of a peaceful rally (as a result, the Government of Georgia acknowledged a viola- 5 years ago, to be exact); the Court’s website in October and November follows: two UDs in 2013, 14 in 2014 and applicants sustained serious injuries) and tion of the procedural limb of Article 2 (right 2015. In December 2015 and in February Notes 15 in 2015 - a significant increase compared the failure of the authorities to investigate, a to life) without admitting a violation of the 2. The forensic findings (that corroborate 2016, GYLA applied to the Office of the Gen- 1. http://goo.gl/u4xYWK (Georgian only) to previous years. For instance, in 2012 a total violation of their right to freedom of assembly substantive limb of the same Article. physical injuries inflicted on the applicants) eral Prosecutor based on the Court’s decisions, 2. http://goo.gl/Eru4Wh of four cases were resolved with a settlement (Article 11 ECHR), and their arbitrary arrest and the evidence provided in the applications requesting information about the investigation 3. http://goo.gl/1qrlUo 6 and only one with a UD (this was the only UD and imprisonment (Article 5(1) ECHR). The respective UDs submitted by the Govern- confirm that the injuries were inflicted by the and seeking victim status for the applicants. The 4. Studio Maestro Ltd. and others v Georgia (No. made by the Government in previous years). Mirtskhulava focused on the inadequate medi- ment of Georgia may be summarised as follows. State’s agents. Contrary to the Government’s Office of the General Prosecutor has responded 22318/10) 23.07.15, http://goo.gl/mIo9yI; By the end of 2011, a total of five cases had cal care provided to the applicant in prison assertion, the acknowledgment of a violation to our requests notifying us that on 12 Janu- Mirtskhulava v Georgia (No.18372/04) 30.07.15, http://goo.gl/FnmVf6 been resolved through FS. (under Article 3 ECHR); errors in the course First, the Government of Georgia expressly of the substantive limb of Article 3 does ary 2016, criminal Case No.010098141 was 5 Gamtsemlidze and others v Georgia (No.2228/10) of his pre-trial detention and insufficient acknowledged a violation of the applicants’ not prejudge the outcome of the domestic referred to the Department for the Investigation 1.04.14, http://goo.gl/PEFzcc; Articles 37 and 39 of the European Conven- reasoning in the court decisions authorising rights under the procedural limb of Article investigation. Instead, it would only suggest of Crimes Committed during Legal Proceedings. Bekauri and others v Georgia (No. 312/10) 8.10.15, http://goo.gl/i8MtTO; tion on Human Rights (ECHR) along with his detention (Article 5(1) ECHR); and public 3 and/or 2 ECHR on account of the defi- that the State bears the responsibility for the On 8 February 2016, the same Department Menabde v Georgia (No. 4731/10) 5.11.15, Rule 43(5) of the Rules of Court (1 January statements that undermined the presumption ciencies in the criminal investigation into applicants’ physical abuse and the domestic re-qualified the case under paragraph 3(b) of http://goo.gl/jtM3Pc; 2016) cover striking out applications on the of innocence (Article 6(2) ECHR). The case the applicants’ injuries allegedly sustained law enforcement authorities would then be Article 333 of the Criminal Code of Georgia Tedliashvili and others v Georgia (No. 64987/14) basis of FS and UDs.2 The definitions of FS of Khakaber Tedliashvili concerned the death during the demonstration and the deficien- tasked, within the remit of undertaking an (exceeding official powers under violence). 17.12.15, http://goo.gl/oLQXU4; Egiazaryan v Georgia (No. 40085/09) 17.12.15, and UD are set out in Rules 62 and 62A of of a prisoner, who had been systematically cies in the investigation into the prisoner’s effective investigation, with identifying the Further we were notified that investigative http://goo.gl/sQwtFl the Rules of Court.3 subjected to ill-treatment and threats by death. The Government, within the frame- concrete perpetrators of the crimes. measures were in progress. Contrary to our 6. Studio Maestro, Bekauri and Menabde prison officers. Finally, Egiazaryan related to work of the declarations submitted in all request, the prosecutor failed to grant victim 7. Gharibashvili v Georgia group of cases (No. 11830/03) 29.7.08 - see Committee of Ministers, In 2014-2015, seven cases in which the the State’s failure to comply with its positive of these cases, undertook to ensure the 3. The judgments of the Court against Georgia status to the applicants. According to national Supervision of the Execution of Judgments and applicants were represented by the Georgian obligation to take all necessary preventive effectiveness of the ongoing investigations concerning the ineffective investigation of law, without victim status we have no right to Decisions of the European Court of Human Rights, 8th Annual Report of the Committee of Ministers, Young Lawyers’ Association (GYLA) and the safety measures aimed at avoiding the life- into the applicants’ allegations as well as to allegations of the excessive use of force by have access to case materials and thus are Council of Europe, March 2015, pp. 64, 108-109, European Human Rights Advocacy Centre threatening incident, the explosion of a pay certain sums to the applicants to cover the State agents are pending implementation.7 deprived of the opportunity to check what kind https://goo.gl/SRTMzx (EHRAC) were struck out of the list by the landmine, which had caused the applicant’s any and all pecuniary or non-pecuniary dam- That means that there is a systemic problem of investigative measures are taken or will be 8. https://goo.gl/F5XlhV European Court. Two of these cases were disability (under Article 2 ECHR). ages as well as costs and expenses. with effective investigations into the use of taken in future. To date, the applicants are not

22 EHRAC BULLETIN | SUMMER 2016 EHRAC BULLETIN | SUMMER 2016 23 Recent EHRAC human rights cases face and hands, and fractures to her hip and effective and accessible mechanism to allow However, on 4 December 2006, the Chely- shin bones. After a month in hospital, the Ms. Abakarova and others to seek adequate abinsk Regional Court quashed the Town applicant returned to Zakan-Yurt to live with reparation for the harm suffered. The Court Court’s judgment and held that the Ozersk her grandmother. At this time, she found out awarded €300,000 in non-pecuniary dam- Social Security Office should pay Ms. Gayeva the CEDAW Committee, the authors lodged an women, and domestic violence in particular that all other members of her family who fled ages to the applicant. monthly compensation “to be determined X and Y v Georgia application with the European Court of Human (§11(b)(ii)); Katyr-Yurt on 4 February 2000 – her parents, in accordance with the law”. Pursuant to a Rights, which rejected the case as manifestly her two brothers, her sister and a cousin – had Comment request for supervisory review lodged by the CEDAW Committee: Decision ill-founded. The Committee, however, deemed • the ratification of the Council of Europe died as a result of the airstrikes. Mayak State Enterprise (which managed the the Communication admissible based on its Istanbul Convention on tackling violence The judgment in Abakarova v Russia reiterated Mayak power plant), the Presidium of the (Communication No. 24/2009), 13.07.2015 different legal orientation. It noted inter alia against women (§11(b)(iii)); and Ms. Abakarova was represented by Memorial the Court’s findings in Isayeva v Russia (No. Chelyabinsk Regional Court quashed the that, whereas the application lodged with the Human Rights Centre (Moscow) and EHRAC. 57950/00) 24.2.05 and Abuyeva and Others judgment of 4 December 2006 and remitted Facts ECtHR was focused on the personal impact of • the provision of mandatory training for v Russia (No. 27065/05) 2.12.10. Similarly, the case to the appeal court on the ground the abuse suffered by the applicants, it never judges, lawyers and law enforcement per- these two cases were brought by 30 applicants that the lower instance court had not properly X was raped by her future husband at a party. She referred to the sex-based discrimination inher- sonnel on domestic legislation on prevention Ten years since the first who were living in Katyr-Yurt at the time of examined evidence and had wrongly applied married him because of societal pressure in Geor- ent in the failure of the authorities to prevent of domestic violence, the CEDAW Conven- judgment on the Rus- the attack, and whose relatives were killed or the substantive law. On 27 August 2007 gia which prizes women’s virginity as a significant the violence suffered by the authors, which tion, the CEDAW Committee’s General wounded. Ten years since the first judgment the Chelyabinsk Regional Court re-examined precondition for marriage. Together they had five constituted the essence of the Communication Recommendation No. 19, including on sian military operation on the Russian military operation in Katyr- the case and dismissed Ms. Gayeva’s claim children. X and her daughter Y – both Georgian before the Committee (§6.4). the definition of domestic violence and on in Katyr-Yurt was issued, Yurt was issued, and fifteen years after the for compensation. On 1 September 2007 nationals – for years suffered physical and sexual gender stereotypes (§11(b)(iv)). event itself, there has been little progress on Social Services cancelled the compensation violence and psychological abuse at the hands of and fifteen years after the implementation of the Court’s findings. payments which Ms. Gayeva had received their husband and father respectively. If effectively Comment the event itself, there has Nevertheless, in outlining general measures between 1 March 2007 and 1 August 2007. implemented, the been little progress on to be taken by the Russian Government, the From 2001 onwards, X repeatedly complained X and Y is the first ever decision from an Abakarova judgment represents the Court’s The applicant was represented by Planet of to the authorities about acts of violence to which Committee’s recommen- international body relating to domestic violence the implementation of strongest statement yet that the Russian Hopes and EHRAC. The Court joined the case she and her children were subjected. In 2004, dations have the poten- in Georgia. Despite the fact that since 2006 the Court’s findings. Government must take measures to address with Mishura v Russia (No. 5941/06). X also reported incidents of physical and sexual there is a Georgian Law on Domestic Violence, impunity and provide redress for victims of abuse inflicted on Y by her father. None of her tial to effect substantive the State has so far failed to ensure thorough this tragic event. Judgment complaints was properly investigated, and a change for victims of and effective compliance with its provisions. Judgment criminal case was never opened. The decision domestic violence and If effectively implemented, the Committee’s The Court held that the domestic court’s not to open a criminal case was appealed by recommendations have the potential to effect The Court found that the Russian military Gayeva v Russia judgment was specific enough to create an X, and her last appeal was dismissed by Tbilisi discrimination against substantive change for victims of domestic operation in Katyr-Yurt, although legitimate, asset within the meaning of Art. 1 of Protocol Court of Appeal in February 2006. At the time of women in Georgia. violence and discrimination against women did not meet the required level of care to safe- ECtHR: Judgment No. 1, the peaceful enjoyment of possessions. the events, there was no legal framework in Geor- in Georgia. Moreover, the case is an important guard civilians resulting in a violation of the Right to peaceful enjoyment of The quashing of this judgment in breach of gia to provide effective legal protection, shelter precedent for the whole South Caucasus region, applicant’s and her family’s right to life (Art. 2 possessions the principle of legal certainty frustrated the and support to victims of domestic violence. Judgment where many similar issues of widespread ECHR). Similarly, Russia had failed to meet its applicant’s reliance on the binding judicial discrimination against women are prevalent. procedural obligations under Art. 2. The Court (No. 7946/08), 29.10.2015 decisions and deprived her of the opportunity X submitted that the authorities viewed The Committee recognised the violation by the noted that the inadequacy of the investigation to receive the judicial award which she had her complaints as a private matter, and her State of the authors’ rights under the Articles stemmed from the “investigating authorities’ legitimately expected. Accordingly the Court husband was merely asked to sign unenforce- relied upon (Articles 1, 2 (b)-2 (f) and 5 (a)) Abakarova v sheer unwillingness to establish the truth and Facts found a violation of Art. 6(1) of the Convention able declarations that he would not resort to in conjunction with the Committee’s General punish those responsible.” Further, the Court and Art. 1 of Protocol No. 1. violence again. Criminal charges were never Recommendation No. 19 on violence against Russia found a violation of the applicant’s right to an The applicant, Ms. Gayeva, was the widow of pressed against him despite the existence of women. It established inter alia that Georgia effective remedy, because of the ineffective- Mr. Lev Gayev, who participated in the clean- Comment prima facie evidence of criminal offences. X had failed to comply with its obligations: ECHR: Judgment ness of the criminal investigation and the up operation at the industrial site of Mayak and Y’s claims before the CEDAW Committee Right to life impact of this on the potential effectiveness power plant between 30 September 1957 The Court reiterated that departures from the included that, by the authorities’ inaction, • to adopt appropriate legislative and other of any other remedy that may have existed and 31 December 1958 and was exposed principle of legal certainty are justified only they tacitly contributed to the husband’s measures prohibiting violence against women (Art. 13 in conjunction with Art. 2). to radioactive emissions. Mr. Gayev died of when made necessary by circumstances of a (No. 16664/07), 15.10.2015 violent behaviour. They also reiterated that, and girls as a form of discrimination against cancer in 1985, aged 46, when Ms. Gayeva substantial and compelling character. It also outside of the family, the testimonies of X, Y women (§9.7); and Significantly, the Court invoked the legally was 45 years old. observed that in the present case the judgment and the other children were always subjected Facts binding nature of its judgments under Art. 46 was set aside by way of a supervisory review to an inherently biased and discriminatory • to take all appropriate measures to modify ECHR, concluding that the State should adopt In 2005 Ms. Gayeva learned from her friend solely on the ground that the lower court had attitude in favour of the husband’s evidence. the social and cultural patterns of conduct of The applicant, Ms. Taisa Abakarova, lived individual and general measures to address (whose husband had died in 2004) that she incorrectly applied the substantive law. men and women for elimination of prejudices with her family in Zakan-Yurt, a village in the the violations, including “non-judicial means received monthly compensation for the loss Based on the above, the authors claimed a and customary and all other practices based Achkhoy-Martan district of Chechnya. During of collecting information and establishing of the breadwinner, under the 1991 Federal The Court’s consistent approach in such cases breach of their rights under Articles 1, 2(b) – 2(f) on the idea of the inferiority or the superiority the Second Chechen War, on 1 February 2000, the truth about these tragic events; public Law “On Social Protection of Citizens Exposed is that, in the absence of a fundamental and 5(a) of the Convention on the Elimination of of either of the sexes or on stereotyped roles insurgent fighters entered Zakan-Yurt and the acknowledgment and condemnation of a to Radiation as a Result of the Accident at defect in the previous proceedings, a party’s All Forms of Discrimination against Women (the for men and women (§9.7). area was subjected to Russian airstrikes. serious violation of the right to life in the PA Mayak of 1957 and Radioactive Waste disagreement with the assessment made by CEDAW Convention). The applicants were repre- At the time of the events, the applicant course of security operations; assessing the Discharges into the River Techa”. In August the first-instance and appeal courts is not a sented Article 42 of the Constitution, Interights Aside from the specific recommendation to was eight years old. The following day, the adequacy of the national legal instruments 2006 Ms. Gayeva sought to obtain compensa- circumstance of a substantial and compelling (until May 2014) and subsequently EHRAC. provide the authors with adequate financial applicant’s family left Zakan-Yurt for the vil- pertaining to large scale security operations tion from the Ozersk Social Security Office in character warranting the quashing of a bind- compensation for the violation of their rights, lage of Katyr-Yurt, which was described as a …and … better training for both military and relation to the loss of her husband’s income. ing and enforceable judgment and re-opening Admissibility decision the Committee issued general recommenda- ‘peace zone’. However, on 4 February 2000, security personnel in order to ensure strict On 17 October 2006 the Ozersk Town Court of the proceedings on the applicant’s claim tions, including inter alia: airstrikes commenced in Katyr-Yurt and the compliance with the relevant legal standards, of the Chelyabinsk region rejected her claim, (see Dovguchits v Russia (No. 2999/03) The State party challenged the admissibility family decided to leave. As they were leaving, including human rights and international finding, in particular, that she failed to show 07.06.2007 §30, and Kot v Russia (No. of the Communication in the light of the fact • the introduction by the State of a zero- their car was hit by shelling. The applicant humanitarian law.” The Court also underlined that she had been financially dependent on her 20887/03) 18.01.2007, § 29). that before the Communication was sent to tolerance policy in respect of violence against was hospitalised for extensive burns on her the need to set up, as a matter of urgency, an husband at the time of his death.

24 EHRAC BULLETIN | SUMMER 2016 EHRAC BULLETIN | SUMMER 2016 25 Zakharov v Russia Comment the area was fully cleared. Mr. Frumkin was represented before the ECtHR by Memorial Judgments and decisions in our cases This judgment confirmed the holistic approach HRC and EHRAC. ECHR: Judgment taken by the Court in Kennedy v the United 2005 - 2016 Right to respect for private life Kingdom (No. 26839/05) 18.05.2010, where it examined the scope of the legislation gov- The sanctions (No. 47143/06), 04.12.15 erning state surveillance and the existence of effective remedies to challenge surveillance imposed on the Facts activities. As in the Kennedy case, the Court applicant as well as took a broad approach, by stating first that In December 2003, Roman Zakharov, jour- the individuals should show a “reasonable many other nalist and the chairperson of a branch of the likelihood” of being subjected to surveillance 1. Khashiyev v Russia 24.02.2005 47. Kiladze v Georgia 02.02.2010 93. Askhabova v Russia 18.04.2013 Glasnost Defense Foundation, brought judicial and secondly that, alternatively and in excep- participants of the 2. Akayeva v Russia 24.02.2005 48. Dubayev v Russia 11.02.2010 94. Ageyevy v Russia 18.04.2013 proceedings against three mobile telephone tional circumstances, they could challenge the Bolotnaya Square operators, complaining of the violation of surveillance regulatory framework in abstracto. 3. Isayeva v Russia 24.02.2005 49. Bersnukayeva v Russia 11.02.2010 95. Turluyeva v Russia 20.06.2013 his right to privacy of his telephone com- demonstration had 4. Yusupova v Russia 24.02.2005 50. Zakayev & Safanova v Russia 11.02.2010 96. Bersanova v Russia 10.10.2013 munications. He claimed that Russian law The Zakharov judgment is particularly a chilling effect on 5. Bazayeva v Russia 24.02.2005 51. Kayankin v Russia 11.02.2010 97. Yandiyev v Russia 10.10.2013 had required the mobile network operators important in the light of the pending cases 6. Isayeva v Russia 24.02.2005 52. Gultyayeva v Russia 01.04.2010 98. Elikhanova v Russia 10.10.2013 to install equipment which had permitted from the UK concerning state surveillance. open political debate 7. Volkova v Russia 05.04.2005 53. Mutsolgova & others v Russia 01.04.2010 99. Chilayev & Dzhabayev v Russia 31.10.2013 the interception of all telephone communica- According to Judge Spano, a distinction 8. Novoselov v Russia 02.06.2005 54. Abayeva & Others v Russia 08.04.2010 100. Dobriyeva & others v Russia 19.12.2013 tions by the Federal Security Service without should be drawn between mass surveillance, in Russia. judicial authorisation. as in Zakharov, and strategic targeted surveil- 9. Fadeyeva v Russia 09.06.2005 55. Sadulayeva v Russia 08.04.2010 101. Magomadova v Russia 09.01.2014 lance, which some of the UK cases implicate.1 10. Dobrokhotova v Russia 26.10.2006 56. Khatuyeva v Russia 22.04.2010 102. Amirova & others v Russia 09.01.2014 The domestic courts dismissed his claims, The balance of citizens’ and State interests Judgment 11. Romashina v Russia 26.10.2006 57. Khutsayev & Others v Russia 27.05.2010 103. Yusupovy v Russia 09.01.2014 finding that he had not proved that his tel- will be one of the main challenges facing the 12. Zolotaryeva v Russia 26.10.2006 58. Ilyasova v Russia 10.06.2010 104. Z & Khatuyeva v Russia 30.01.2014

ephone communications had been intercepted Court in its upcoming cases concerning mass The applicant alleged that the early closure of 13. Ledyaeva v Russia 26.10.2006 59. Yuldashev v Russia 08.07.2010 105. Dzhabrailov & others v Russia 27.02.2014 or that the mobile network operators had surveillance. the rally and the disruptive security measures, 14. Zolotukhin v Russia 07.06.2007/10.02.2009 60. Isakov v Russia 08.07.2010 106. Usumovy v Russia 27.02.2014 transmitted, or permitted the transmission as well as his own arrest and subsequent 15. Bitiyeva & X v Russia 21.06.2007 61. Lopata v Russia 13.07.2010 107. Perevedentsevy v Russia 24.04.2014 of, protected information. Domestically, the Notes conviction, constituted a violation of his 16. Alikhadzhiyeva v Russia 05.07.2007 62. Sultanov v Russia 04.11.2010 108. Gamtsemlidze & others v Georgia 01.04.2014 courts held that the mere existence of equip- 1. http://goo.gl/HolKe0 right to peaceful assembly. With respect to ment enabling law-enforcement agencies to the general measures taken by the authori- 17. Magomadov & Magomadov v Russia 12.07.2007 63. Amuyeva v Russia 25.11.2010 109. Antayev & others v Russia 03.07.2014 perform operational-search activities did not ties towards the demonstrators, the Court 18. Musayev & others v Russia 26.07.2007 64. Abuyeva v Russia 02.12.2010 110. Amadayev v Russia 03.07.2014 constitute an interference with the right to found that the Moscow authorities failed to 19. Makhauri v Russia 04.10.2007 65. Gisayev v Russia 20.01.2011 111. Makayeva v Russia 18.09.2014 privacy of his communications. In his ECtHR discharge their positive duties regarding the Frumkin v Russia 20. Goncharuk v Russia 04.10.2007 66. Karpacheva & Karpachev v Russia 27.01.2011 112. Amerkhanova v Russia 09.10.2014 application, the applicant argued violations of conduct of the assembly – including a failure 21. Kukayev v Russia 15.11.2007 67. Tsintsabadze v Georgia 15.02.2011 113. Islam-Ittihad Association & others 13.11.2014 the right to respect for his private and family to ensure appropriate communication with the v Azerbaijan ECHR: Judgment 22. Tangiyeva v Russia 29.11.2007 68. Elmuratov v Russia 03.03.2011 life (Art. 8 ECHR) and to an effective remedy organisers prior to the assembly – and thus Freedom of assembly 114. Albakova v Russia 15.01.2015 (Art. 13 ECHR). Mr. Zakharov was represented acted in breach of Art. 11. The applicant’s 23. Kaplanova v Russia 29.04.2008 69. Khambulatova v Russia 03.03.2011 115. Zhebrailova & others v Russia 26.03.2015 by Memorial HRC and EHRAC. arrest, pre-trial detention and conviction, even 24. Gusev v Russia 15.05.2008 70. Tsechoyev v Russia 15.03.2011 (No. 74568/12), 05.01.2016 116. Kagirov v Russia 23.04.2015 if justified under Art. 11(2), were found to 25. Betayev & Betayeva v Russia 29.05.2008 71. Esmukhambetov v Russia 29.03.2011 117. Sargsyan v Azerbaijan 16.06.2015 Judgment have been grossly disproportionate. Further, 26. Ryabikin v Russia 19.06.2008 72. Matayeva & Dadayeva v Russia 19.04.2011 the Court found that the applicant’s pre-trial 118. X & Y v Georgia (CEDAW) 16.07.2015 Facts 27. Musayeva v Russia 03.07.2008 73. Maayevy v Russia 24.05.2011 First, the Court found that Mr. Zakharov was detention breached his right to liberty (Art. 119. Studio Maestro & others v Georgia 23.07.2015 28. Umarov v Russia 03.07.2008 74. Malika Alikhadzhiyeva v Russia 24.05.2011 entitled to claim that he was a victim under Mr Frumkin, the applicant, was arrested by 5(1)) as there were no legal grounds or other 120. Mirtskhulava v Georgia 30.07.2015 the Convention. It held that he did not need to the police during the dispersal of the 6 May reasons for remanding him in custody pending 29. Mezhidov v Russia 25.11.2008 75. Isayev v Russia 21.06.2011 121. Abdurakhmanova & Adbulgamidova 22.09.2015 30. Lyanova v Russia 02.10.2008 76. Velkhiyev & Others v Russia 05.07.2011 demonstrate that he had been personally sub- 2012 Bolotnaya Square demonstration against the hearing. Lastly, the Court ruled that the v Russia jected to a concrete measure of surveillance, alleged abuses and falsifications during the administrative proceedings against the appli- 31. Albekov v Russia 09.10.2008 77. Yakubov v Russia 08.11.2011 122. Bekauri & others v Georgia 08.10.2015 since the broad scope of the contested provi- November 2011 parliamentary and March cant, which included the domestic court’s 32. Itslayev v Russia 09.10.2008 78. Ergashev v Russia 20.12.2011 123. Abakarova v Russia 15.10.2015 sion of the Russian law had affected all users 2012 presidential elections. His detention in refusal to examine the two police officers who 33. Umayeva v Russia 04.12.2008 79. Kotov v Russia 03.04.2012 of mobile telephone communications. Thus police custody lasted at least 36 hours, fol- had carried out the arrest, were conducted 124. Gayeva v Russia 29.10.2015 34. Bersunkayeva v Russia 04.12.2008 80. Shafiyeva v Russia 03.05.2012 the Court examined the relevant legislation in lowing which, on 8 May 2012, he was found in violation of the applicant’s right to a fair 125. Menabde v Georgia 05.11.2015 35. Y v Russia 04.12.2008 81. Damayev v Russia 29.05.2012 abstracto. Furthermore the mere existence of guilty of an administrative offence of disobey- hearing under Art. 6 ECHR. 126. Zakharov v Russia 04.12.2015 36. Abdulkadyrova & others v Russia 08.01.2009 82. Umarovy v Russia 12.06.2012 the legislation constituted an interference with ing lawful police orders and sentenced to 15 127. Egiazaryan v Georgia 17.12.2015 37. Medova v Russia 15.01.2009 83. Berladir v Russia 10.07.2012 Mr. Zakharov’s right to respect for private and days’ administrative detention. His appeal was Comment 128. Tedliashvili & others v Georgia 17.12.2015 family life, as guaranteed under Art. 8 ECHR. dismissed by a district court, which upheld 38. Ayubov v Russia 12.02.2009 84. Yudina v Russia 10.07.2012 129. Frumkin v Russia 05.01.2016 the first-instance court judgment. Although In its decision the Court stressed that the 39. Eminbeyli v Russia 26.02.2009 85. Kakabadze v Georgia 02.10.2012 130. Dalakov v Russia 16.02.2016 Secondly, the Court found that Russian a notification of the demonstration had been arrest, detention and conviction of the appli- 40. Khalitova v Russia 05.03.2009 86. Tunyan v Armenia 09.10.2012 legislation governing mass surveillance had duly accepted by the relevant Moscow authori- cant had the effect of discouraging him and 131. Rasul Jafarov v Azerbaijan 17.03.2016 41. Alaudinova v Russia 23.04.2009 87. Asadbeyli & others v Azerbaijan 11.12.2012 not provided for “adequate and effective ties prior to the event and issues of security, other demonstrators, and the general public 132. Gaysanova v Russia 12.05.2016 42. Magomadova v Russia 18.06.2009 88. Volkov v Ukraine 09.01.2013 guarantees against arbitrariness and the risk including the route of the march, had been at large, from participating in rallies or from 133. Yunusov & Yunusova v Azerbaijan 02.06.2016 43. Sukhov v Russia 18.06.2009 89. Suleymanov v Russia 22.01.2013 of abuse” and that the interference could not confirmed with the organisers, the area allot- engaging in political opposition activities. The 134. Merabishvili v Georgia 14.06.2016 be considered as “necessary in a democratic ted to the demonstration was altered without sanctions imposed on the applicant as well as 44. Tsarkov v Russia 16.07.2009 90. Avkhadova v Russia 14.03.2013 society” (§302). Thus the Court found that the appropriate notice and the police ordered an on many other participants of the Bolotnaya 45. Mutsayeva v Russia 23.07.2009 91. Kasymakhunov v Russia 14.03.2013

interference had constituted a violation of Mr. early termination of the event. Subsequently, Square demonstration had a chilling effect on 46. Isayev v Russia 22.10.2009 92. Korobov v Estonia 28.03.2013 Zakharov’s Art. 8 rights. the police dispersed the rally participants until open political debate in Russia.

26 EHRAC BULLETIN | SUMMER 2016 EHRAC BULLETIN | SUMMER 2016 27 About EHRAC Contributions

EHRAC is an independent apolitical organisation that stands alongside EHRAC would like to thank the following people for their contributions: victims of human rights abuse in order to secure justice. Working in support Tamar Abazadze, Intigam Aliyev, Grigor Avetisyan, Libkan Bazayeva, Lucy of civil society organisations, we bring strategic cases to the European Court Charman, Graham Donnelly, Monica Ellena, Lize Glas, Olga Grygorovska, to challenge impunity for human rights violations. We raise awareness of viola- Lousineh Hakobyan, Rasul Jafarov, Lord Frank Judd, Shoaib M Khan, Cornelia tions and means of redress for victims. Each judgment we secure contributes Klocker, Kirill Koroteev, Kate Levine, Anar Mammadli, Samed Rahimli, Sophie to an objective account of human rights abuse that cannot be refuted. Rust, Emil Sahakyan, Anahit Simonyan, Freek van der Vet and Nadia Volkova. This Bulletin was produced by EHRAC, designed by David Packe and EHRAC Partnerships translated into Russian by Tatiana Hansbury. The EHRAC Bulletin is published biannually. We welcome contributions of EHRAC works in partnership with many NGOs, lawyers and individuals in Russia, articles, information or ideas. Please write to EHRAC by email to propose an the South Caucasus and Ukraine. Our work focuses on mentoring joint project article. Material in the Bulletin can be reproduced without prior permission. lawyers to develop their professional skills and independence as litigators. To However, we would request that acknowledgment is given to EHRAC in any find out more about the organisations we work with, and how we work in partner- subsequent publication and a copy sent to us. ship, visit http://www.ehrac.org.uk/about-us/our-team/our-partner-organisations/ Donations Call for new partners EHRAC relies entirely on grants and charitable donations. If you would like to EHRAC is seeking to develop partnerships with new organisations in the coun- support our work with a donation of any size, please make a cheque payable tries we work in. If you are litigating at the European Court and would like to Middlesex University (EHRAC), and send it to the address below. Thank you to discuss potential collaboration opportunities with EHRAC, please contact for your support. [email protected] in English, Russian or Armenian. You can also donate online: www.ehrac.org.uk/about-us/our-supporters/support-our-work Internship Opportunities Contact Us EHRAC has in-house internship placements available throughout the year. To find out about the type of work our interns do, what opportunities are currently EHRAC, School of Law, Middlesex University, available and how to apply, please visit www.ehrac.org.uk/about-us/jobs-listing/ The Burroughs, Hendon, London, NW4 4BT Tel: +44 (0) 208 411 2826 Fax: +44 (0)203 004 1767

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