Azerbaijan: Activist Arrested, Held Incommunicado

Azerbaijani authorities arrested Elgiz Gahraman, a youth activist, on August 12, 2016, but have refused to reveal his whereabouts or to give him access to a lawyer of his choosing, Human Rights Watch said today. The authorities should set aside Gahraman's detention order and promptly release him. If the authorities have credible evidence to pursue charges, they can proceed promptly to a fair trial while he is on bail, in accordance with international standards.

Gahraman was charged with drug possession on August 13, and the Narimanov District Court ordered him held in pretrial detention for four months. Police officers were instructed to take Gahraman to a pretrial detention facility. But the authorities have prevented a lawyer retained by Gahraman's parents from meeting with him and would not provide information about his whereabouts to the lawyer or to Gahraman's parents.

"Every minute that Gahraman doesn't have access to a lawyer of his choice, and his whereabouts is unknown to his family, is a minute when he's vulnerable to ill-treatment by police," said Giorgi Gogia, South Caucasus director at Human Rights Watch. "The authorities should immediately tell Gahraman's family where he is and ensure unfettered access to the lawyer of his choice."

Gahraman is a member of NIDA, Azeri for exclamation mark, a youth opposition movement active on social media that is highly critical of the government. Police detained him in the center of the capital, Baku, and took him to the Organized Crime Unit at the Interior Ministry. After allegedly discovering 3.315 grams of heroin on him, the authorities charged Gahraman with illegal drug possession in large quantity with an intention to sell under criminal code article 234.4.3. If convicted, he could face up to 12 years in prison.

For the past three years, the Azerbaijani government has carried out a pervasive crackdown on dissent, jailing dozens of political activists, human rights defenders, journalists, and other government critics.

Azerbaijan has a history of using bogus drug charges against NIDA and other youth activists to stop them from criticizing the government, Human Rights Watch said.

Gahraman's parents found out about his detention from a friend of his who was detained with him but released five hours later. For more than two days the family phoned the police hotline but was not able to get any additional information about Gahraman's detention or his whereabouts. Nor has Gahraman been in contact with his family, presumably because authorities have not allowed him to contact them. On August 15, officials at the Organized Crime Unit told the lawyer that a court had already ordered pretrial detention for his client.

Gahraman's lawyer told Human Rights Watch on August 18 that since August 15 he had been unsuccessfully trying to establish exactly where his client was being held and to visit him. The pretrial detention order, which Human Rights Watch has reviewed, states that the authorities should have transferred Gahraman to a pretrial detention facility in the Kurdakhani district of Baku, but when the lawyer went there he was told Gahraman was not there.

On August 16, the lawyer spoke with the investigator for the case, explained that he had a retention letter from the family – referred to as "an order" in Azerbaijan – and asked for a meeting with Gahraman. The investigator told the lawyer to send the letter by registered mail to the Organized Crime Unit and that he would review it. The lawyer sent the letter on August 16, but has not heard back from the investigator.

Under Azerbaijani law, the case investigator should be present at the first meeting a detainee has with the lawyer retained by the family, to confirm the choice of the defense lawyer with the detainee. On August 15, the family learned that Gahraman had been represented by a state-appointed lawyer at his bail hearing. The lawyer retained by the Gahramans appealed the judge's order for pretrial detention. However, at the appeal hearing, on August 18, the authorities failed to bring Gahraman to the court. Instead the investigator read a letter, allegedly from Gahraman, saying that he did not object to the pretrial detention order and did not want to appear in court

"It's hard to avoid the impression that law enforcement is purposefully keeping Gahraman out of sight," Gogia said. "Whether that's because they are trying to hide signs of abuse, or otherwise seeking to coerce him, blatantly circumventing his basic due process rights strongly suggests serious wrongdoing by the authorities."

By refusing to provide the Gahraman's family information about his arrest and his place of detention and by creating artificial barriers to prompt access to a lawyer of his choosing, the authorities are denying Gahraman his fundamental rights as a detainee and important safeguards to prevent ill-treatment and guarantee an effective defense, Human Rights Watch said. Physical abuse in police custody is a persistent problem in Azerbaijan.

Although about 17 human rights defenders, journalists, and activists have been released since March, the crackdown again intensified in the past few weeks.

Also on August 12, Azerbaijani authorities arrested Natig Jafarli, a prominent government critic and executive secretary of the opposition Republican Alternative (REAL) movement, charged him with illegal entrepreneurship and abuse of office, and sent him to pretrial detention for four months. The charges stem from a criminal case the prosecutor general's office opened against non-governmental groups in 2014. If convicted, he faces up to eight years in prison.

On August 15, a Baku court sentenced two other REAL activists Elshan Gasimov and Togrul Ismayilov, to seven days of administrative detention, allegedly for disobeying police orders.

REAL openly campaigned against proposed amendments to the constitution that abolish minimal age requirement for a presidential candidate, increase the presidential term of office from five to seven years, and give the president additional powers. They include the authority to dissolve the parliament, and to appoint the first vice-president to serve as president if the president is unable to fulfill his duties. Currently, the prime minister becomes acting president if the president is incapacitated.

Azerbaijan is a party to multiple human rights treaties, including the European Convention on Human Rights, that require governments to ensure multiple safeguards against arbitrary or otherwise unlawful detention (article 5 of the Convention), as well as against violation of fair trial rights (article 6 of the Convention). These include proper procedures around detention, so that the location of any detainee can be promptly established and the right to a lawyer from the moment of detention.

The European Court of Human Rights has told governments that they need to have accessible records that show "date, time, location of detention, the name of the detainees, as well as the reasons for the detention and the name of the person effecting it" and that failure to do so is "incompatible with the very purpose of Article 5." The failure of the authorities to provide Gahraman's lawyer or family with information on his whereabouts indicates that these safeguards are not being met.

The court has also emphasized on multiple occasions that, "access to a lawyer should be provided as from the first interrogation of a suspect by the police, unless it is demonstrated in the light of the particular circumstances of each case that there are compelling reasons to restrict this right."