Restrictive new bills sweep freedoms under the carpet [part 1]

This is part one in a series of detailed reports and analysis on existing legal amendments and new legislation affecting freedom of expression, media, and online rights in Azerbaijan and their compliance with international standards for freedom of expression.  

In March of last year, AIW shared an update about amendments to an existing bill on Information provisions, Informatization, and Protection of Information and Code of Administrative Offences of the Republic of Azerbaijan. Now, let’s take a closer look at these amendments and what they entail. 

Amendments to the Information Law

Amendments to an existing bill on Information provisions, Informatization, and Protection of Information extended the subjects – to users – of responsibilities for placement of prohibited information, including the “false information” on information-telecommunication networks.

This means that amendments establish the liability over the information-telecommunication network users to place prohibited content on the information-telecommunication networks; 

The amendments also added an item to the list of prohibited content, forbidding the  placement of false information: thus, prohibited information was considered “false information [yalan məlumatlar] in case it posed a threat to harm human life and health, cause significant property damage, mass violation of public safety, disrupt life support facilities, financial, transport, communications, industrial, energy and social infrastructure facilities or other socially dangerous consequences.”

In other words, if users placed content on the internet that might be considered false information capable to disrupt the functioning of state bodies or their activities it can be considered on the grounds of violating the existing law.

Amendments to the Code of Administrative Offences

During the same plenary meeting on March 17, 2020, an amendment to article 388-1 of the Code of Administrative Offenses (CAO) of Law No. 27-VIQD was also approved.

Article 388-1 of the CAO was aggravated with the penalty of up to one-month administrative detention with other sanctions against real or legal person owners of internet information resources and associated domain names as well as on users of information-telecommunication networks for the placement, or the violation of provisions of the Information Law aiming at preventing the placement, of prohibited information on such internet information resources.

With the amendments introduced to laws, users of the information-telecommunication network, owners of internet information resources, and domain names might be punished under Article 388-1 of the CAO. The penalty for the offense is a fine between 500 and 1000 manats (about US$294–$588) for real persons and 1000 to 1500 manats for officials, with an option of up to one month of administrative detention for both classes of persons depending on the circumstances and the identity of the offender.

Implementation of the Amendments (abuse of application)

Shortly after the amendments, police applied these provisions frequently against individuals, including political activists and journalists despite the call from the United Nations, Council of Europe, and OSCE expert bodies urging the authorities to address the disinformation in the first instance by relevant government institutions, providing reliable information and resorting to other restrictive measures, only where they met the standards of necessity and proportionality. This did not prevent authorities from targeting a number of activists and journalists in the following days.

On April 16, 2020, Human Rights Watch documented how Azerbaijani authorities abused quarantine restrictions allegedly to fight with disinformation while arresting opposition activists and silencing the government critics. HRW documented at least six activists and opposition journalists’ sentenced to detentions ranging from 10 to 30 days.

March 21, 2020, Ilgar Atayev was called in for questioning and charged with article 388.1 of the code of administrative offenses – sharing prohibited information on the Internet or Internet – telecommunication networks. According to Meydan TV, an independent online news platform, although Atayev informed that the charges against him were sent to court, he was not aware of the exact accusation. Authorities claimed at the time, Atayev, shared information on COVID without quoting official sources and that the shared information was false.

March 23, 2020, according to the Ministry of Internal Affairs’ press service, three people were administratively arrested for allegedly spreading misinformation about the coronavirus infection.

March 27, 2020, according to the Ministry of Internal Affairs’ press service, between March 26 and 27, 15 people were identified and summoned to the local police on the grounds of allegedly spreading misinformation about the coronavirus infection on social networks and WhatsApp instant messaging application. After the relevant investigations, police warned seven people, fined five, and sentenced three to administrative detention.

April 4, 2020, according to the Ministry of Internal Affairs’ press service, during the control measures carried out between April 1-2, one person was administratively arrested, and five people were fined for allegedly spreading false information about the coronavirus infection on social networks, including WhatsApp instant messaging application.

April 6, 2020, according to the Ministry of Internal Affairs’ press service, one person received a warning for allegedly spreading false information about the coronavirus infection on social networks, including WhatsApp instant messaging application.

Amid on-going arrests, detentions, and fines, on April 3, 2020, the Council of Europe Commissioner for Human Rights issued a statement noting that press freedom must not be undermined by measures to counter disinformation about COVID-19.

Analysis of the law

Content regulation rules and policies which presumably touch on the freedom of speech must meet the strict criteria under international and regional human rights law. According to the European Court of Human Rights jurisprudence, a strict three-part test is required for any content-based restriction.

The Court notes that the first and most crucial requirement of Article 10 of the Convention is that any interference by a public authority with the exercise of the freedom of expression should be lawful.

The second paragraph of Article 10 stipulates that any restriction on expression must be “prescribed by law”. Furthermore, any restrictions need to be necessary for a democratic society [See Sunday Times v. UK (No. 2), Series A no. 217, 26.11.1991, para. 50; Okçuoğlu v. Turkey, No. 24246/94, 8.7.1999, para. 43.] and the state interference should correspond to a “pressing social need”.[See Sürek v. Turkey (No. 1) (Application No. 26682/95), the judgment of 8 July 1999, Reports 1999; Sürek (No. 3) judgment of 8 July 1999.] The state response and the limitations provided by law should be “proportionate to the legitimate aim pursued” [See Bladet Tromsø and Stensaas v. Norway [GC], no. 21980/93, ECHR 1999-III.] Therefore, the necessity of the content-based restrictions must be convincingly established by the state [The Observer and The Guardian v. the United Kingdom, the judgment of 26 November 1991, Series A no. 216, pp. 29-30, § 59.]

The Law on Information, Informatisation, and Protection of Information (Law № 460-IQ)

In 2017, the Law (1998) was updated with a series of restrictive amendments, converting the Law from a technical regulation into a content regulation.

Primary concerns of the Law concerning content regulation:

Owner of the Internet information resource, including owners of the domain name, host, and internet providers bear a strict administrative liability to remove the content manifestly prohibited under article 13-2.3 within 8 hours of notice;

In urgent cases, [when the legally protected interests of the state and society are threatened or there is a real threat to human life and health requires to do] the internet information resource may be temporarily restricted on the basis of a decision of the regulatory body – Ministry of Transport, Communications and High Technologies [restriction is applied without a court order. Although an application is made to the court, the decision to close down the online information source remains in force until the court handles the case or the decision is annulled.]

In refusing to remove the content upon the government’s notice within the 9 hours, owners of internet information resources, owners of domain names, host, and internet providers will face a court sue with possible administrative sanctions.

Safeguards against removal and blocking procedures:

Article 13-3.1 of the law provides that the relevant executive authority (regulatory body) shall issue a warning to the owner of the Internet information resource and its domain name and the hosting provider in writing if it directly discovers cases of placement of prohibited information in the Internet information resource or identifies it based on substantiated information received from individuals, legal entities or government agencies;

Existing legislation and practice concerning content removal and blocking do not provide adequate safeguards against arbitrariness;

for instance, there is no requirement to inform the information resource owners, Internet and host providers or owners of other sites and their users before issuing the content removal warning, and failure to implement the warning leads to a penalty because the Code of Administrative Offenses provides for liability for both the posting of prohibited information and the failure to remove prohibited information posted on the Internet.

The Law on Information, Informatisation, and Protection of Information provide that warning about content removal is considered a mandatory requirement and that failure to obey is sanctioned under Article 388-1.1 of the CAO and possible court sue for block order.

Content removal and blocking procedures also lack transparency and fairness:

The law does not oblige the regulatory body to provide the information resource owners, internet and host providers, or other sites’ substantiated opinion reasoning for the content prohibited. In other words, the regulatory body and other state authorities can request to remove the content or block access to websites without any obligation to substantiate their demands.

Vague Terms and Quality Law Standards:

Sufficient clarity is the requirement of the quality law standard established by the ECHR case-law which requires that the law be both adequately accessible and foreseeable, that is, formulated with sufficient precision to enable the individual to foresee the consequences which a given action may entail, and indicate with sufficient clarity the scope of any discretion conferred on the competent authorities and the manner of its exercise [see Hasan and Chaush v. Bulgaria [GC], no. 30985/96, § 84, ECHR 2000‑XI; and Ahmet Yıldırım, cited above, §§ 57 and 59].

In the list of prohibited information envisaged in the Law on Information, Informatisation, and Protection of Information, the definition of what entails prohibited content is described with vague expressions that are open to excessive interpretations. With these terms, the state authorities “enjoy” a broad discretion power to categorize any information as prohibited (Law № 460-IQ). 

For instance, article 13-2.3.2 of the Law (№ 460-IQ) classifies the information on the promotion of violence and religious extremism and calls for the separation of territorial integrity as prohibited content. The religious extremism and calls for the separation of territorial integrity are vague terms and lack sufficient clarity.

The Law on Combat with Religious Extremism (LCRE) adopted in December 2015, in article 1.0.1.1 defines religious extremism with vague and problematic expressions. The Law refers to acts as “humiliating national dignity,” “compromising religion,”  and “preparing, storing and disseminating religious extremist material” as amounting to religious extremism. Expressions such as “national dignity” or “humiliation of national dignity” are non-legal concepts that are not defined in the domestic laws and therefore subject to broad interpretation by the authorities applying them, opening the way to misinterpretation of the concept and its application in an arbitrary manner [Furthermore, article 1.0.1.6 of the LCRE refers to “forcing someone to practice any religion (religious belief), including performing religious ceremonies and rituals as well as to religious education” as another act of religious extremism, which is equally problematic and may collide with the idea of spreading ideas of religious beliefs and inviting others to join, as a part of exercising freedom of religion, subject to the interpretation of the two concepts by the authorities, in absence of any criteria or clear terms in place. As the ECtHR has ruled, freedom of religion and the freedom to change religion in particular cover activities aimed at persuading others to change religion.]

Procedural safeguards:

Another problematic provision is article 13-2.3.9 of the law, which classifies insult and slander as the prohibited content online. Generally, the legislation of Azerbaijan provides for both civil action and criminal prosecution of defamation. As to the criminal prosecution of defamation, as of March 2017, there are four articles in the Criminal Code that provide criminal liability for defamation. With the amendments to the Law on Information, Informatization, and Protection of Information and Code of Administrative Offences on 17 March 2020, defamation is now sanctioned under the code of administrative offenses.

In practice, police often apply this provision against people who allegedly insult police or other state officials. 

On June 27, 2020, police arrested and fined several individuals who criticized the singers who devoted a song to the police claiming, they allegedly insulted the singers on social networks, insulted their honor and dignity. Meydan TV’s investigation revealed that most of those punished were representatives of opposition parties such as the Popular Front, Musavat and public activists. They were punished under Article 388-1 (posting of information prohibited from dissemination on the Internet).

However, the application of this provision contradicts with the domestic legislation. In Azerbaijan, it is not up to the police to classify the information on the grounds of slander or insult and instead is defined exclusively by the respective domestic courts upon the complaints of the individuals.

According to well-established court practice, courts always decide to conduct an expert examination to assess whether information/opinion is insulting or slanderous, and then the judge relies on the result of the expert examination. Furthermore, the law does not exclude the possibility that the same statement may be subject to both civil and criminal proceedings for defamation. 

Furthermore, the law does not specify how the sanction might be imposed if alleged prohibited content is identified. It is not clear from the text whether the website user will bear the responsibility alone or together with the owner of the internet or host provider. It is seemingly left to the executive authority to decide. For instance, in the case of a media article that allegedly contains prohibited content, the government may block the website forever in parallel, imposing sanctions on the content owner (user of the information resource).

Proportionate and necessary:

As discussed above, if the restriction does not meet proportionality and necessity requirements, the content removal or blocking measures may lead to violation of freedom of expression guaranteed under article 10 of the European Convention on Human Rights. Law on Information, Informatisation, and Protection of Information fail to specify a definition of the categories of blocking orders, such as blocking of entire websites, Internet Protocol (IP) addresses, ports, network protocols or types of use, like social networking, including a limit on the duration of the blocking order which is crucial parameters of the interference to assess whether applied methods are proportionate and necessary in a democratic society to limit the freedom of expression.

Conclusion

This ambiguous law gives extensive flexibility for the state to consider different, particularly critical views as false and government views as correct. The new amendments stipulate that the information shared on the Internet, which disrupts activities of the state institutions, is prohibited and punishable under the Code of Administrative Offences. While false information is also prohibited and punishable if such information threatens other socially dangerous consequences, which the law does not define. 

Such vague definitions and ambiguous expressions provide extensive discretion powers for the state authorities, allowing them to label critical views as false and prohibited. Given the abovementioned concerns, the Law on Information, Informatisation, and Protection of Information does not comply with international standards on freedom of expression. Its scope remains incredibly broad in terms of vague definitions, lack of safeguards, and procedural guarantees.

government in Azerbaijan threatens activists with interpol, again [update September 14]

On September 8, seven Azerbaijani dissidents who now live in various cities across Europe were targeted by the government of Azerbaijan. In addition to being formally charged with a crime in their absence and arrest warrants issued, the authorities have vowed to ask Interpol for their extradition.

The story goes back to last year when an Azerbaijani blogger, Elvin Isayev was extradited to Azerbaijan from Ukraine. Isayev lived in Russia since 1998 and was known for his critical views of the government. He acquired Russian citizenship in 2001. 19 years later, a court in St. Petersburg ruled to strip him of Russian citizenship and expel him. The following month Isayev moved to Ukraine, after an interim measure of the European Court of Human Rights called “Rule 39” suspended his deportation. Three months later he went missing only to appear in Azerbaijan where the Azerbaijan State Migration Service claimed Isayev was deported, a statement that was later refuted by Ukraine’s State Migration Service which said it never ordered Isayev’s deportation.

Few days after his “arrival” in Azerbaijan, Isayev was charged with calling for mass riots and public incitement against the ruling government. Now, the Prosecutor General office is seeking the deportation of seven men accusing them of the same crimes.

Ordukhan Babirov, Gurban Mammadov, Orkhan Agayev, Rafel Piriyev, Ali Hasanaliyev, Tural Sadigli, and Suleyman Suleymanli have been now charged in their absence. Many of these men are known for their online media activism, managing popular opposition YouTube channels, and for organizing street protests across European capitals in support of political prisoners in Azerbaijan, highlighting human rights violations and other advocacy engagements. One of the targeted men, popular activist, Ordukhan Babirov (known as Ordukhan Temirkhan Babirov) wrote in a Facebook post “[…] how many more times are they are going to give my name to Interpol”.

In an interview with OC-Media Tural Sadigli, activist and editor of Azad Soz [Free Speech] online news platform, said he faced a criminal case in 2019. “I was slighly surprised. They can’t reach us, they cannot stop our activities, so they use such forms of pressure,” Sadigli told OC Media.  

This is not the first time, the government in Azerbaijan is resorting to Interpol. But according to Interpol, “[it] cannot compel the law enforcement authorities in any country to arrest someone who is the subject of a Red Notice. Each member country decides what legal value it gives to a Red Notice and the authority of their law enforcement officers to make arrests.

The persecution against activists at home and abroad is on-going. For years, the ruling Baku tried silencing dissident voices both inside the country through threats, intimidation, and arrests and abroad through public shaming campaigns, and targeting of remaining family members. 

A week ago, a court in Baku sentenced veteran dissident Tofig Yagublu to four years and three months in jail on bogus charges. A campaign calling for his freedom #FreeTofigYagublu and #TofiqYaqubluyaAzadliq was launched and many of the targeted activists mentioned in this story have been rallying behind the campaign. Similarly, a youth activist who is among the organizers of the September 9 rally in support of Yagublu, was also targeted online and blackmailed. 

activist accused of intentionally spreading coronavirus [updated]

On July 20, activist Nijat Ibrahim, posted on his Facebook, that he was going to protest outside the Presidential Apparatus in the capital Baku. The main message of his one-man protest was calling on the President of Azerbaijan, Ilham Aliyev to resign. The activist also said he demands that the government demolish all of the monuments of Haydar Aliyev. 

However, shortly after leaving his home, Ibrahim was detained by the police and charged with Article 139.1.1 of the Criminal Code (Violation of anti-epidemic, sanitary-hygienic, or quarantine regimes) specifically with spreading the virus. On July 21, Ibrahim’s wife, received a phone call informing her, her husband tested positive despite him never taking the testOn July 22, Nasimi district court found Ibrahim guilty and sentenced the activist to three months in pre-trial detention.

On July 28, Ibrahim’s lawyer filed a motion requesting the Center for Dangerous Infections at the Ministry of Health to provide information about the date Ibrahim was tested, and the results were made available to him. The court dismissed the motion.

According to the legislation, Ibrahim is facing 2500-5000AZN [1500-3000USD] fine, jail up to three years, or up to three years of restricted freedoms. 

Scores of political activists have been accused of a similar crime over recent weeks. 

political activist detained over social media post

June 27, member of an opposition party Popular Front, Faig Rashidov was sentenced to ten days in administrative detention on charges of violating the Code of Administrative Offenses Article 388.1 (placing online or on information/communication networks information otherwise banned).  

Rashidov was previously subject to pressure for his activism and political views.

Popular Front members have been regularly persecuted in recent months. Currently, at least 10 party members are behind bars. All are accused of various crimes, none however are legitimate, claim the party headquarters. 

in Azerbaijan TikToker gets detention time [updated]

June 22, Baku Court of Appeals rejected the TikToker’s appeal for release. In his defense, Elshan Teymurov said the main reason for his arrest – the circulated video – was made in 2019 and that he already spent 15 days in administrative detention at the time. Teymurov also added that he removed the video after his detention according to Meydan TV reporting.

Teymurov said, the video was uploaded on YouTube outside of his knowledge at the end of May and that he was arrested shortly after the video was shared.

June 2, TikToker Elshan Teymurov was arrested and sentenced to two months in administrative detention on drug possession charges and disobeying police. Teymurov says the charges are bogus and that he was detained over a YouTube video where he recites a verse on police violence.

teacher arrested over social media posts

On May 22, a high school teacher Jalil Zabidov was arrested and sentenced to five months in prison on charges of hooliganism according to reports. Zabidov was also a member of D18, an opposition movement.

According to his family members, and members of the D18 movement, Zabidov often shared stories and news of corruption in his village.

In October 2019 D18 was targeted online. Its Facebook page was hacked and the group lost thousands of followers. According to one of the movement’s founders, Ruslan Izzetli, the attack was targeted and was the result of a recent Facebook post the group shared on their page, calling on the current Minister of Internal Affairs, Vilayet Eyvazov’s resignation. 

two editors of online news platforms arrested [updated]

February 7, on his 95th day of hunger strike, journalist Afgan Sadigov is experiencing memory loss said Sadigov’s wife, Sevinc Sadigova in an interview with Turan News Agency. Sadigova also said, her husband lost consciences on the 80th day of the hunger strike, and as a result fell into a coma. Although he regained his consciences his condition remains critical. Sadigova also said, that her husband has been receiving food injections through a tube.

January 28, the court of appeal reduced the sentence of Afgan Sadigov whose health condition remains critical Turan News Agency reports. The Sumgayit Court of Appeal in a hearing where Sadigov was absent ruled to reduce the seven-year sentence to 6. Speaking to Turan News Agency Sadigov’s lawyer Elchin Sadigov [not related] said the defendant intends to file a cassation appeal with the Supreme Court and the European Court of Human Rights. Meanwhile, the journalist’s wife, Sevinc Sadigova said the decision is a travesty of justice sentencing her husband to death

On January 10, the family members of Sadigov reported his health was in critical condition and that the journalist was at the Penitentiary Service medical ward. Attempts to receive a comment from the Penitentiary Service were futile according to Azadliq Radio. 

On November 3, Afgan Sadigov was sentenced to seven years. In protest to the sentence, Sadigov, went on a hunger strike as of November 4. Meanwhile, Sakit Muradov, who was tried together with Sadigov was absent during the court hearing. According to Azadliq Radio reporting, Muradov was not detained during the investigation and was placed under police surveillance instead. Unlike Sadigov, Muradov received a suspended sentence.

On May 13, editors Afgan Sadigov, from AzelTV and Sakit Muradov, from Xeberfakt.az were reportedly arrested on charges of extortion. The two were allegedly caught during operation. 

According to a statement issued by the Prosecutor General office, both men demanded a total of 15,000AZN from the officials at Sumgayit City Executive power in an exchange for not running a series of stories on their respective websites. The statement claims, both journalists were caught having received 10,000AZN. 

If found guilty, both journalists are facing up to ten years in jail. 

Previously Sadigov was arrested in November 2016 on charges of hooliganism. He was sentenced to two and a half years in jail in January 2017. Sadigov was released in May 2018. 

The same year, Sadigov was sentenced to 30 days in administrative detention for allegedly disobeying police orders. Upon his release, Sadigov said he was innocent and that he was tortured in detention. At the time, the Ministry of the Interior did not comment. 

In November 2018 Sadigov was sentenced once again to a month in prison on charges of disobeying police and/or military officer. 

Sadigov is known for his criticism of the government in his social media posts and statements. Ahead of this recent arrest, Sadigov reportedly shared a story about rape which was refuted by the Prosecutor General.  

social media users questioned over coronavirus posts [Last update June 26]

May 22, member of D18 political movement and administrator of a Facebook page “Say no to corruption”, Jalil Zabitov was arrested and sentenced to five months on hooliganism charges. 

April 22, member of opposition Popular Front party, Arif Babayev was sentenced to 30 days in administrative detention on charges of placing prohibited information online under Article 388.1.1 of the Code of Administrative Offenses.

April 13,  journalist Ibrahim Vazirov with an online video news channel Kanal24 was arrested after police demanded he removes his online posts about the social and economic impact of COVID-19. Vazirov was sentenced to 25 days in administrative detention allegedly for disobeying police.

Several other journalists were detained while reporting on C19. 

April 11, activist Nariman Abdulla sentenced to ten days in administrative detention on the grounds of violating the anti-epidemic, sanitary-hygienic and quarantine regime according to Azadliq Radio. Abdulla was taken by the police, from his house on April 10 in the city of Lankaran. His family members claim his detention is the result of his posts and comments on social media. Abdulla criticized the Minister of Labor and Social Protection over a lack of assistance for the poor families during the quarantine regime.

April 6, political activist Shakir Mammadov questioned over Facebook post then arrested on charges of hooliganism and sentenced to 15 days in administrative detention according to AzadliqRadio report.

Mammadov described his arrest as unlawful. Mammadov said he had informed local police he was going to the pharmacy after having texted a specified number. As soon as he left the apartment, he was apprehended by the local police in the city of Sumgayit and taken to the police station.

There he was asked to remove a Facebook post, where he wrote that during quarantine, people are unable to work, and therefore, have trouble providing for their families. Therefore the authorities should help. When he refused to remove the status, police charged him with hooliganism (according to police protocol Mammadov was stopped on the street for swearing. When the police approached him, they asked him why he was outside without a protective mask and gloves. When Mammadov disobeyed their questions, he was arrested).

April 4, journalist, Tezekhan Mirelemli was questioned over a Facebook post according to local media reports.


Translation: “Friends, today, I was called with an official letter to the Baku City Main Police Department. They wanted to speak with me about a Facebook status I shared after an incident that occurred near Hazi Aslanov metro stop. I gave my explanation and was let go. I would like to say, there was no violence used against me. Some friends, have shared news that I was beaten. I am telling you it is not true. As for the Facebook status – I deleted it. I knew it would be misinterpreted. I wanted to delete the status as soon as I shared it. I did not delete it in the evening because there was some troll activity. I would like to say I had no intention when sharing that Facebook status. I shared it because I wanted to prevent cases of abuse from happening again. I then deleted it because I did not want it to be misunderstood.”

The journalist’s post was about a police officer, according to Azadliq Radio reports but no further details are given.

Mirelemli was convicted on June 19, on hooliganism charges and sentenced to wear an electronic bracelet. The conviction also calls for the journalist’s confinement to his home, between 11pm and 7am every day for the next 12 months. 

***

March 25, police in Azerbaijan, closely monitor discussions on the popular social media platform, Facebook. Some users reportedly are invited for questioning.

The national parliament adopted changes to the law on Information, Informatisation, and Protection of Information, ten days ago, and already, several social media users have been questioned by the police over their posts.

Local authorities are relying on the new article “Violating sanitary hygiene, quarantine and pandemic regimes” when questioning social media users.

On March 21, AIW reported of Ilgar Atayev, who was called in for questioning and charged with article 388.1 of the code of administrative offenses – sharing of prohibited information on the Internet or internet – telecommunication networks. Authorities claim, Atayev, shared information on COVID without quoting official sources and that the information provided was false.

Since then, at least two more cases have been reported.

In another case, Anar Malikov, an opposition activist,  was sentenced to ten days of administrative detention for violating the pandemic regime on March 21. The court decision said Malikov violated the quarantine regime with his social media posts. No such legal liability is specified in Article 211 of the Code of Administrative Offenses.