state sponsored harassment and targeting in Azerbaijan is very much alive and kicking – a year in review

Azerbaijan Internet Watch was launched around the time when more evidence kept emerging, on the use of authoritarian technology in Azerbaijan. This technology allowed the perpetrator(s) (in most cases identified as an institution or individual affiliated with the government of Azerbaijan] to target Azerbaijan’s civil society. These revelations marked a significant shift in the way the authorities were persecuting its critics. In addition to offline measures – physical intimidation through kidnapping, arrests, detentions, questioning; bogus trials, and lengthy jail times; and adoption of restrictive new laws limiting the ability of civil society to work –  there were new tools at the state’s disposal that could now deliver phishing attacks, DDoS attacks, targeted harassment, mass fake reporting on social media platforms,  hacking of personal as well as public social media accounts and emails, leaking unlawfully obtained data, online blackmail, the use of trolls and bots, and more. In none of these documented cases, it was possible to hold the state or its institutions, or the actors to account. Dismissals have been a common response. 

“By using its monopoly over the country’s information-technology infrastructure, it has disrupted internet access, placed temporary bans on social media services like TikTok, launched DDoS attacks, and used various digital-surveillance tools, including the Israeli spyware Pegasus, to target and censor activists and journalists. The democracy watchdog Freedom House now considers the internet in Azerbaijan “not free”.” Facebook is Failing Journalists, November 22, 2022, By Arzu Geybulla, for Project Syndicate

State-sponsored surveillance

In 2014, an OCCRP investigation revealed how mobile operators were directly passing on information about their users to the respective government authorities. Last year, AIW looked into the protection of personal data mechanisms that exist in the country. The research and legal analysis indicated that “the national legislation on personal data protection does not effectively protect individuals against the arbitrary use of their personal data by both public and private entities.” In addition, the analysis showed “that the national laws restrict and control personal data with intrusive measures, such as equipping telecom networks with special devices, and real-time access to vast amounts of personal data, in the absence of a criminal investigation or judicial order. As such, the absence of clear and enforceable regulations to protect personal data against arbitrariness and flawed systems due to negligence puts personal data at a higher risk of infringements.” Additional findings included the following information confirming OCCRP’s revelations in 2014:

The Presidential Decree No. 507 dated June 19, 2001 (IV) “On the division of powers of search operations’ entities while carrying out search operations,” ensures that the Ministry of Internal Affairs and the State Security Service can autonomously connect to the communication networks of telecom operators. That being said, the presidential order regulating the conduct of this kind of search and operation activity in the telecom industry dated February 15, 2017, is not public.

The above-mentioned legal environment makes subscribers’ personal data accessible to the law-enforcement authorities given that all collected user personal data is accumulated in the database established together with the law enforcement authorities or is equipped with the technical means allowing law-enforcement authorities access users’ personal information. Also, according to Article 11 (IV) of the Law on Operation and Search Activities, the decision of the court (judge) or investigative body or the authorized subject of operative search activity on the implementation of operation-search measures can be accepted not only when there is an initiated criminal case but also in a wide range of circumstances.  

In another report released in 2021, AIW identified the following loopholes grating the state further access to the personal information of citizens:

The Law on Telecommunication obligates network operators to install special equipment, provided by the State Security Service, Ministry of Internal Affairs, and Special State Protection Service onto the telecommunication networks enabling the Government to extract (intercept) data on anyone regardless of whether that person(s) is part of an investigation process or not.

The installment of special equipment within communication networks is regulated by the “Rules for equipping telecommunications operators and providers with additional technical means for conducting search operations, reconnaissance and counter-intelligence activities” issued by the Ministry of Transport, Communications, and High Technologies on  June 14, 2016. The Rule obligates telecommunication operators and providers to create technical conditions for the conduct of relevant activities within the communication networks.

The Rule defines that Telecommunication Control System (hereinafter – TCS) – is special hardware and software that provides confidential control over the exchange of information of subjects targeted by the relevant measures (such as search and operation, intelligence, and counterintelligence activities), as well as all statistical data of the network. TNS consists of data extraction facilities, transport networks, and control centers.

The Rule also indicates that relevant measures in the communication networks are carried out in accordance with the requirements of the laws of the Republic of Azerbaijan “On Operation-Search Activity” and “On Intelligence and Counterintelligence Activity”.

However, while the Law on Operation-Search Activity may allow secret surveillance and seizure of private information, there are no rules or procedures within the national legislation for secret surveillance and intercepting information by government agencies. There are also no clearly defined rules on determining the grounds for such surveillance and interception activities, their duration, and whether such activities can be stopped by a court or other higher state authority.

The above legal and investigative findings may explain how in 2012, during the Internet Governance Forum held in Baku, Neelie Kroes’s [who at the time, was the Vice-President of the European Commission responsible for the Digital Agenda for Europe] advisors had their computers hacked. At the time, Ali Hasanov, who was serving as head of the Azerbaijani Presidential Administration Social and Political Department said, “there was no such interference, and couldn’t have been.” Hasanov was “one of the key figures defining the government’s policies regarding media, freedom of speech, and political liberties,” according to an OCCRP investigation into Hasanov and his family’s media business. At home, Hasanov was also known as the “King of trolls.” And although he denied his passion for trolls, even at the time when he was leaving his office in January 2020, as it turned out, Hasanov was a troll factory supplier. In September 2021, AIW published this story revealing how the government of Azerbaijan did indeed operate its own troll factory:

Ever since the 2013 revelations about Russia’s troll factory, many in Azerbaijan wondered whether the country’s leadership too operated its very own troll factory. Unlike its Russian version, known as the Internet Research Agency, there was only anecdotal evidence of whether this was really the case in Azerbaijan. There were no former “factory” employees who came forward or undercover journalists who temporarily worked there and exposed the work carried out later. Not until this month anyway. An investigation against the executive director of the State Media Support Fund Vugar Safarli now reveals that the suspicions were valid after all. And that upon specific instructions a group of “bloggers” were responsible for monitoring Facebook and leaving comments under posts that were critical of the government or relevant government institutions.

The investigation is part of a criminal case launched against Vugar Safarli who until recently headed the State Fund for Media Development in Azerbaijan. Safarli was arrested in 2020 on charges of money laundering (allegedly 20million AZN) and abuse of authority. 

On September 2, Azerbaijan Service for Radio Free Europe, Azadliq Radio published parts of the testimony by Safarli where the former government official implicates not only that the government did indeed deploy trolls but that several high ranking officials including then Presidential advisor Ali Hasanov and former head of the Presidential Administration Ramiz Mehdiyev were well aware of this. Moreover, the building from where trolls operated belonged to Hasanov himself. 

“Ali Hasanov told me that the new rented space, will have internet bloggers who will work from there. And indeed there were a few, who sat there, working unofficially,” Safarli reportedly said in his statement according to Azadliq Radio reporting. 

Predating 2014 revelations, are a series of examples that were documented in this report showing how state-sponsored surveillance was used as early as 2008, albeit at the time, using less sophisticated technology such as black boxes and wiretaps.   

In the years that followed, the state-sponsored surveillance got worse as has been documented either here or by other platforms. The culmination was the use of Pegasus and targeted harassment of civil society activists online through the dissemination of their personal data obtained through hacking of their devices as well as social media accounts. 

As AIW described in this report:

Members of opposition political parties, independent journalists, political and human rights activists have long faced systematic pressure and persecution orchestrated by the government of Azerbaijan. The unprecedented crackdown against civil society that began in 2013, marked a new chapter, in the history of Azerbaijan’s civil society. One, marred by arrests and prosecution of high-profile activists, rights defenders, and journalists.

This systematic pressure and harassment were not only offline. It was only a matter of time, that the internet too would become a place to target activists, journalists, and human rights defenders, holding them accountable for their online criticisms on bogus accusations that often ended with lengthy jail sentences, forced apologies on public televisions (see The State of Internet Freedom in Azerbaijan report), detentions and further forms of persecution.

In a country where almost all avenues for freedom of expression and activism were eliminated, the internet, specifically online media platforms, and social media networks became new targets. To monitor discussions online, prevent citizens from accessing independent news online, or social media platforms, and to further curb freedoms online, the government of Azerbaijan embarked on a shopping spree, becoming a client of companies selling sophisticated surveillance equipment and technology.

By 2021, the government of Azerbaijan has successfully deployed a Remote Control System (RCS), Deep Packet Inspection (DPI), phishing, and spear-phishing attacks often with homegrown malware. The most recent addition to a wide variety of authoritarian technology deployed in Azerbaijan is Pegasus spyware.

The Law on Operation-Search Activity overseas phone tapping and information extraction from communication channels. Further, the third section of article 10 of the Law on Operation-Search Activity does not require a judicial act or supervision of higher authority while wiretapping and extracting information from technical communication channels unless there is a need to install technical devices such as voice, video, or photo recorders at the place of residence of the individuals.  

In other words, anyone in Azerbaijan can be subject to such a form of oversight.

In Azerbaijan, “anyone” is often, a representative of Azerbaijan’s civil society. This includes political activists, rights defenders, journalists, members of opposition political parties and movements, and feminists, to name a few. As AIW documented in its February 2023 report: 

2022 has been no different than recent years in terms of online attacks and internet censorship in Azerbaijan. Human rights defenders, activists, politicians, and media professionals in Azerbaijan are increasingly becoming victims of cybercrimes, including electronic surveillance, privacy infringement, and cyberstalking, due to their independent and legitimate professional activities. The online targeting of individuals critical of the government has become increasingly frequent and constant. And yet neither of these cases has been effectively investigated, and the perpetrators have not been identified.

Despite the active use of the criminal and administrative offenses legislation, including other technical resources to limit freedom of expression on the internet [including the blocking of key opposition and independent news websites, summoning and punishing individuals for critical opinions distributed online], the state systematically fails to provide effective investigation on the complaints of the individuals subject to unlawful covert surveillance (Pegasus), cyber-attacks, online blackmailing and hacking attempts against activists and media professionals. In most cases, reveal that online harassment against government critics is organized by the government or government-linked institutions.

In April 2022 report, Meta reported that it removed a hybrid network operated by the Ministry of Internal Affairs of Azerbaijan that combined cyber espionage with Coordinated Inauthentic Behavior (CIB) to target civil society in Azerbaijan by compromising accounts and websites to post on their behalf.

There has been a shift however in the use of technology. Based on the monitoring of cases documented by AIW, one scenario indicates that as a result of several forensic exposes tracking the source of phishing attacks and the use of other pervasive surveillance tools to the state, the latter now relies on targeting critics through online harassment and online targeting campaigns in order to damage and/or discredit their reputation. That and the use of restrictive new laws makes silencing dissent less reliant on technology. That being said, there are still cases of phishing attacks as was the case with activist Abulfaz Gurbanli, who was phished through an email and WhatsApp messages in February 2022. A file disguised as grant-related information from a known donor organization containing a virus was sent to Gurbanli via his email. On WhatsApp, the activist received a message from someone impersonating herself as a BBC Azerbaijan Service journalist. The targeting resulted in the installation of spyware on his device and the hacking of his social media accounts. At the time, AIW requested assistance from Qurium media to analyze the link shared in the email and despite the journalist’s assurances, the link did contain a virus. “The mail pointed to a RAR compressed file in Google Drive that once downloaded required a password to be decrypted. The password to decrypt the file was included in the phishing e-mail: bbc. Compressed files that are password protected are common in malware phishing attacks as the files can not be scanned by antivirus,” concluded Qurium in its preliminary report. The further forensic report identified malware written in AutoIT. Once the link (in our case the link to a drive where the alleged journalist left questions for the political activist) was opened, the hacker through the deployed malware installed a persistent backdoor in the system. “The software connects to the domain name smartappsfoursix{.}xyz to download the rest of his software requirements. It downloads gpoupdater.exe and libcurl.dll which look responsible for uploading files to the command and control server. During the execution of the malware several (10) screenshots of the Desktop were uploaded to the server,” read the Qurium analysis.

Targeted harassment: the case of Bakhtiyar Hajiyev

The most recent case of state-sponsored digital targeting is of political activist Bakhtiyar Hajiyev. Hajiyev was arrested in December 2022, shortly after his return to Azerbaijan from a trip abroad. Charged with hooliganism and contempt of court, the activist was then sentenced to 50 days in pretrial detention. That time however was extended twice, most recently until April 2023. Prior to his arrest, Hajiyev often criticized the Ministry of Internal Affairs over its targeted harassment. He was then abducted by unknown men and during his time in captivity was forced to delete his social media posts critical of the ministry. The investigations into Hajiyev’s kidnapping have not been conducted and up to this day, it remains unclear who were Hajiyev’s kidnappers. Throughout the past few years, Hajiyev was also the target of an online blackmail campaign. Three years ago, Hajiyev said there were multiple attempts to break into his social media and email accounts. 

At the end of December 2022, while Hajiyev was already behind bars, some anonymous social media accounts shared private correspondence between Hajiyev and Vusala Mahirgizi, an editor. The leaked conversations alleged Hajiyev was a marionette of one of the clans [in reference to various clans in key government positions in Azerbaijan]. Hajiyev published a statement in which the activist said, the leaked correspondence was a violation of his privacy, given it was obtained through hacking of his personal accounts and that the allegations of him being a marionette, were false.

It is worth noting that this correspondence was leaked during calls for the activist’s release. The leak was largely viewed as an attempt to turn the activist into a scapegoat and weaken the advocacy campaign calling for his release.

Since February 22, 2023, however, Hajiyev has been the target of another blackmail campaign. At least six different Telegram channels have been disseminating conversations between Hajiyev and various women:

Identified Telegram channels:

  • https://t.me/bextiyarhaciyev18

  • https://t.me/baxtiyarifsa

  • https://t.me/+SzloVHfBVkg1YjEy

  • https://t.me/BextiyarinIfsasi

  • https://t.me/BextiyarinIfsasi

  • https://t.me/+DiENXqq3ed4zMzcy

Similar information was leaked by fake Facebook accounts. The leaked correspondence also contained sexually explicit photos of women appearing with Hajiyev. The online targeting of women with their faces publicly disclosed in these groups has led to at least two women being forced to leave their homes and go into hiding from their families, fearing reprisals for ‘immorality’ from their families.

Although there is proof that some of the shared correspondence was photoshopped the targeting has tarnished Hajiyev’s public image and placed the lives of women in the photos in danger. 

The anonymous admins of these chats have also published the names of other activists, threatening to leak their conversations with Hajiyev as well. Some of these activists are advocates calling for Hajiyev’s release. 

The Ministry of Internal Affairs refuted the claims that it may have been behind the leaked information. However, according to Hajiyev’s lawyers, Hajiyev arrived at the Baku General Police Department in his car and left his phone in the car. The car stayed there for three days and it is likely his phone was compromised during this period.

In October of last year, this story explained how Telegram is being used in Azerbaijan. “In Azerbaijan, the app has become a nexus for hate speech, propaganda, and the repression of dissent. In March 2021, multiple Telegram groups were identified in Azerbaijan sharing sex tapes and nude photographs of women. Among the victims were journalists, civic activists, and female family members of exiled political activists as well as ordinary women. The groups and pictures were reported to Telegram, but it took weeks before they were taken down. The damage to the women targeted was done. The channels shared sensitive videos of journalist Fatima Movlamli, the sister of exiled dissident blogger Mahammad Mirzali, civic activist Narmin Shahmarzade and Gunel Hasanli, daughter of opposition party leader Jamil Hasanli.”

Activists in Azerbaijan also pointed out that it is not Hajiyev’s reputation that is placed on the line with this blackmail campaign, but the women too, whose photographs are shared in the absence of their consent. Last year BBC published this investigation about the use of the platform in targeting women specifically “to harass, shame and blackmail them on a massive scale.” Gulnara Mehdiyeva, a feminist activist who has been targeted herself in the past, said in a Facebook post on February 28, “Terrible things are happening in the country. The government, which is responsible for protecting the safety of citizens, deliberately and knowingly wants to make those women victims of suicide or murder.” Two years ago, Mehdiyeva was targeted in a video shared via Facebook, containing a series of leaked private audio messages, that were extracted from Mehdiyeva’s social media accounts and emails. In a February 28 Facebook post, Mehdiyeva also wrote that not only faces of these women were not blurred but the perpetrators of the blackmail campaign also shared the names of the women and at least in one correspondence leaked, the home address of one woman. One of the women whose identity has been exposed in this campaign, was Tunay Aliyeva, an actress and model who said this blackmail campaign was a “cybercrime and invasion of people’s privacy.” In a letter addressed to the First Lady and the First Vice President Mehriban Aliyev, the actress asked that the First Lady personally stepped in, as a woman and a mother herself, in order to put an end to this “abomination.”

No-war activists and feminist activists

AIW has documented how activists who openly criticized the second Karabakh war were targeted by state-sponsored harassment before:

From public Facebook posts and pages targeting the activists, with threats of violence and physical harm, calls for public shaming and punishment, to questioning at Security Services, this has no doubt been one of the harshest, collective, online public harassment campaigns observed until now in Azerbaijan.

In a recent piece published by Lossi 36, Thijs Korsten and Viktoria Kobzeva also wrote:

Following the two-day war and increased public disapproval of Azerbaijan’s actions towards Armenia, government-linked media accounts launched a social media campaign. The photos and names of individuals who condemned the government’s aggression were circulated with the hashtag “Recognise the Traitor” on Facebook and Twitter. The people who were singled out are not marginal anti-war activists but rather prominent opposition figures, who the government sees as a greater threat.

The use of Telegram for the purpose of targeting and harassment has been in use not only in the case of Hajiyev. Previously AIW documented how the platform was used to target feminist activists too:

In recent days, at least three telegram channels were reported for sharing profane content targeting women in Azerbaijan. One channel called “Wretched men club” shared sensitive videos of journalist Fatima Movlamli, and exiled dissident blogger Mahammad Mirzali’s sister. Another group called “Expose bad-mannered girls” has targeted other women activists. A third one, targeted specifically one woman whose Facebook account was hacked shortly after the International Women’s Day march in Baku. 

In the past, other women journalists and activists were targeted in an online harassment campaign. 

Activist Gulnara Mehdiyeva was targeted with a video shared on Facebook, containing a series of leaked private audio messages, that were stolen when Mehdiyeva’s social media accounts and emails were hacked last year

Activist Narmin Shahmarzade’s Facebook profile was hacked, her name changed alluding to her interference with people’s private lives. The hackers flooded her Facebook feed with private messages, some of which were fake, and shared nude photographs of her, including at least one edited photo and audio. Several hours later, a Telegram channel was set up, sharing Shahmarzade’s intimate photos. In an interview with VoA Azerbaijan service, Shahmarzade said, “When my account was hacked, video footage and other posts with criticism of the ruling government were deleted. Then, my personal messages on Facebook messenger were compromised. Some of them were shared after being edited and taken out of context. My personal phone number was exposed and as a result, I received numerous calls and messages of threatening nature.” Shahmarzade said, she has informed the Ministry of the Interior and the State Security Services and describes what happened to her, a crime and that she will be going to court. Shahmarzade also pointed out to AIW that the hacker who compromised her Facebook profile is likely the same person or member of the same group that targeted activist Gulnara Mehdiyeva last year because at least one of the audio that was shared via Shahmarzade’s hacked Facebook account targeting her, does not even belong to the activist and that she never had access to. Contrary, it was among material hijacked from Gulnara Mehdiyeva. 

Among the women targeted, is also dissident blogger Mahammad Mirzali’s sister. Mirzali told AIW that the intimate video of his sister was leaked to harm him. “On February 15 my family members and I received several messages from a US number threatening me to stop my work. Otherwise, they told me they would release the videos of my sister. They told me they were not joking. They leaked the video on March 5. Later they shared the video on telegram channels. The same video was also sent to our relatives,” explained Mirzali. Mirzali suspects the authorities are behind this nasty campaign against his family. On March 14, Mirzali was reportedly stabbed by a group of unknown men. Mirzali is currently at the hospital. 

In September 2020, activist Rustam Ismayilbeyli was intimidated by someone who presented himself as an employee of state security that unless Ismayilbeyli did not stop his activism, intimate pictures of his girlfriend would be leaked online. 

In 2019, journalist Sevinc Osmangizi was the target of a smear campaign that accused her of being a double agent and working as a spy selling government secrets. 

The same year, journalist Fatima Movlamli was targeted with a fake Facebook page created under her name, sharing intimate photos and videos of her in her bed.

In all of the incidents, the targets voiced their suspicion of the government involvement behind these attacks. No responsibility was taken.

Last year, feminist activist Sanay Yaghmur was targeted in a social media blackmail campaign. The perpetrators shared personal information about the activist which they obtained by hacking her email account. 


The practices of digital authoritarianism widely used in Azerbaijan also extend beyond its borders. Last year, Ahmad Mammadli, the leader of a political movement D-18, reported that local authorities intercepted a letter of acceptance to a Master’s program from a university in Turkey. The authorities accused Mammadli of forging the letter. 

This is not an exhaustive investigation and documentation by all means. But AIW will continue to document and monitor the situation and work with partners to keep exposing the use of information controls in Azerbaijan. 

Litigating Pegasus in Azerbaijan: Addressing harms of the government-sponsored surveillance on civic groups in the absence of legal guarantees

In the following featured legal analysis, AIW looks at the litigation work carried out thus far in Azerbaijan on devices infected by Pegasus. Specifically, this legal analysis looks at how Pegasus spyware was deployed to monitor journalists, lawyers, and activists in Azerbaijan and the legal steps taken within the existing national legislative framework to mitigate the unlawfulness of the use of Pegasus against these groups and individuals.  

Background

Over the last few years, global-scale investigations carried out by international human rights organizations, investigative journalists, and/or whistleblowers have shown that the scale of the unlawful surveillance of individuals’ private lives through murky technology software has been pervasive, and widespread. Those findings also revealed the vulnerability of individuals’ fundamental rights and freedoms to private technology companies and the states deploying that technology for their personal interests.

This has certainly been the case in Azerbaijan, where platforms like Azerbaijan Internet Watch (AIW) and others, have documented government-sponsored surveillance and cyber espionage activities. Especially vulnerable are the social and political activists. Several human rights monitoring organizations note the increase in cyber attacks on these groups in recent years.

***

Since 2011, Freedom House analyzes the state of Internet freedom in Azerbaijan in its annual Freedom on the Net report. Until now, each report indicated continuing deterioration of internet freedoms in the country.

Increased interventions on the internet freedoms often constitute a violation of fundamental rights and freedoms stipulated in national and international human rights documents, as such making states obligated to provide effective legal protection and recovery mechanisms against such violations.

However, as documentation and reports from recent years indicate, Azerbaijan thus far, failed to provide effective legal guarantees in cases of privacy violations through cyber-attacks, illegal collection of personal data, wiretapping, and account compromise. Despite routine calls made to the Azerbaijani authorities to investigate and bring perpetrators of cyber-attacks to account, no steps have been taken.

As a result, Azerbaijan continues to systematically fail in providing effective legal remedies and sound investigations against state-sponsored digital attacks and surveillance. Moreover, despite evidence-based reports of targeted and coordinated cyber attacks against activists, the government thus far has not investigated and/or provided effective legal guarantees.

***

In July 2021, an international collaborative reporting initiative #PegasusProject documented how NSO Group, an Israeli surveillance company, sold Pegasus, a hacking software, to authoritarian regimes to target human rights activists, journalists, politicians, and lawyers among others worldwide. The investigation and the list were coordinated and obtained by the Paris-based journalism nonprofit Forbidden Stories and advised by Amnesty International Security Lab.

The investigation determined that Azerbaijan was among the top 10 countries deploying Pegasus spyware.

Organized Crime and Corruption Reporting Project (OCCRP), which was one of the partners in the global investigation, discovered that out of the 50,000 phone numbers that were leaked, 1000 were from Azerbaijan. OCCRP was able to identify 245 numbers and as a result, concluded that a fifth of these numbers belonged to journalists, lawyers, human rights and political activists, politicians, and their family members. OCCRP published a list of identified civil society activists whose devices were confirmed to have traces of Pegasus spyware.

***

Following the Pegasus Project leak, on July 22, 2021, on the National Press Day in Azerbaijan, journalists and human rights defenders gathered in a virtual round table discussion titled “New digital threats to critical voices” initiated by the Institute for Reporters’ Freedom and Safety. The group discussed the importance of protection mechanisms against such mass surveillance and stressed the need to join efforts and seek legal remedy through domestic and international courts. As such, an operative group of lawyers was assembled to develop applications and appeals to domestic authorities and the European Court of Human Rights (ECHR).

Since that meeting and at the time of writing this report a total of four groups were formed, led by different lawyers, representing in total of 62 applicants. It is worth noting that some victims hesitated to join these collective complaint groups due to safety concerns.

Complaints and lawsuits were lodged as early as August 2021. Lawyers and advocates representing all four groups, prepared complaints to the Prosecutor General’s Office of the Republic of Azerbaijan, claiming that their clients’ mobile devices were illegally infected by Pegasus spyware leading to violations of privacy, freedom of expression guaranteed under the national laws and European Convention on Human Rights, the right to effective remedies and the right not to be subjected to restrictions of Convention rights with improper motives or ulterior purposes (Article 18).

Applicants in the group of cases led by advocates and practicing lawyers requested the Prosecutor General’s Office to open a criminal investigation based on the evidence revealed as a result of the global investigation. Specifically, the lawyers noted that several articles of Azerbaijan’s Criminal Code – Article 156, “Violation of privacy”, 271, illegal access to a computer system, 272, illegal interception of computer data, and 302, “Violation of the legislation on operation-search activities”, were violated as a result of the committed criminal act.

According to Article 156 of the Criminal Code (“Violation of privacy”), actions that violate privacy are prohibited and are the basis for criminal liability. According to Article 156.1 of the Criminal Code, the distribution, sale, or giving to someone else, the illegal collection of information that is a secret of personal and family life, documents reflecting such information, video and photo recording materials, sound recordings, causes criminal liability. Article 156.1 of the Criminal Code aims to protect the information that constitutes the secret of personal life and is derived from the goal of protecting people’s constitutional right to privacy. The object of this crime is people’s personal life information.

According to Articles 271 (illegal access to a computer system) and 272 (illegal seizure of computer data) of the Criminal Code acts of deliberately entering a computer system or any part of it without the right to access it, by violating the security measures, or capturing computer data stored on a device, or with other personal intent are criminalized.

Article 302 of the Criminal Code (“Violation of the legislation on operation-search activities”) criminalizes unlawful measures by the persons authorized to carry out operational-search activities in the absence of the grounds established by legislation.

In all of the legal complaints submitted based on the list of violations mentioned in the paragraph above, the team of lawyers asserted that the findings of the Pegasus investigation, put their clients at risk of both secret surveillance and of having their communications data unlawfully intercepted by the authorities or third parties who own the software. None of the identified civil society representatives targeted by the spyware were under lawful investigation. As such lawyers demanded that the Prosecutor General’s Office of Azerbaijan launch a criminal investigation, including the possible role of the Azerbaijani law enforcement in the mass surveillance activities. The legal representatives of all clients said, the state is obligated to provide effective legal guarantees against the abuse of spyware tools against citizens as the latter may constitute unlawful interferences to the right to private life, freedom of expression, and in the case of failure to fully and duly investigate, violation of the right to an effective remedy.

Due to the lack of legal remedies in cases of severe privacy violations, within the Azerbaijani legislation, advocates and lawyers relied on Article 8 (right to respect for private and family life), Article 13 (right to an effective remedy), and Article 18 (Limitation on use of restrictions on rights) of the European Convention on Human Rights.

Between July 2021- July 2022, one of the advocates representing one of the four groups of applicants,  separately applied to the State Security Service [SSS], the Ministry of Internal Affairs [MIA], the Ministry of Digital Development and Transport [MDDT], as well as the Ombudsman office requesting an investigation, along with the Prosecutor General’s Office. None of the advocate’s appeals were successful. None of the institutions investigated the complaints or provided reasonable answers.

Overall, the lack of effective response on behalf of the law enforcement authorities, against complaints requesting to open a criminal investigation, indicates there were and still are significant flaws and delays in the investigation process, despite the evidence collected through forensic methodology by the international organizations. Nearly a year later, the law enforcement authorities are yet to take formal investigative actions, despite the complaints containing forensic evidence obtained from the examined mobile devices.

Court litigations

In all of the legal cases, the lawyers provided circumstantial evidence (contextual information) for how Pegasus infected the mobile devices of applicants. Specifically, the lawyers shared detailed information about the purpose of the Pegasus spyware and the potential state agencies that might use it. Relying on the existing national legislation the lawyers also established the legal grounds for using surveillance programs to intercept private communication or other private data from technological devices, including mobile phones.

Advocates representing the four groups submitted complaints to the local courts against the general prosecutor’s office for failing to explain why it sent lawyers’ Pegasus-related complaints to the State Security Services in the absence of justifications or notice. It was the responsibility of the General Prosecutor’s Office to investigate lawyers’ complaints, but instead, it sent them directly to State Security Services. This was unlawful and baseless. Yet, despite the unlawfulness of the act, the local courts did not satisfy these complaints and returned them without consideration (issued decisions in a similar text that they were considered inadmissible).

This explicitly demonstrates that the law enforcement authorities and domestic courts of Azerbaijan refused to effectively investigate the complaints and failed to provide any legitimate grounds for refusing the investigation in the first place.

One of the four groups involved in litigation procedure, includes activists, human rights defenders, journalists, and other public figures, who were previously subjected to different legal harassment by the government. Advocates and lawyers representing this group are demanding that the Prosecutor General’s Office investigate the possible role of the law enforcement authorities on the grounds that the use of spyware tools breached the defendants’ rights guaranteed under both the Constitution of Azerbaijan and the international treaties Azerbaijan is a party to. 

The complaint consists of the summary of the complaint itself, information about the applicant, and information on the use of Pegasus to track the defendants, including applicants’ claims and petitions based on the substantial and procedural grounds of the complaint.

In their fifteen-page complaint, the applicants referred to the findings of Pegasus investigations, alleging that their phones were tapped and infected with Pegasus. The complaint also stated that listening and monitoring of the complainant through the use of Pegasus violated Articles 32, “Right to inviolability of private life” and 47, “Freedom of thought and speech” of the Constitution of Azerbaijan, and Articles 8, 10 and 18 of the European Convention on Human Rights (ECHR) as the breach was politically motivated. Lawyers also claimed that the surveillance was in violation of Articles 18 and 19 of the UN International Covenant on Civil and Political Rights, as well as the jurisdiction of the Human Rights Committee on the implementation of that Covenant.

In addition, 11 petitions were attached by the lawyers, to the submitted complaints, requesting certain actions from the Prosecutor General’s Office that was necessary for an impartial and comprehensive investigation. These petitions included:

  • Obtaining testimonies of applicants;
  • Submitting official requests to Amnesty International Forensics team and the OCCRP for forensic investigation of identified devices;
  • requesting the Ministry of Internal Affairs and the State Security Service to obtain a list of persons who carried out the interception of the devices;
  • obtaining information on the purchasing of the spyware from the “NSO Group” company;
  • requesting information from the Ministry of Internal Affairs, the State Security Service, and the State Special Protection Service of the Republic of Azerbaijan about any relevant instructions on preventing human rights violations during the use of the Pegasus or similar programs;
  • obtaining information on whether the officials at the Ministry of Internal Affairs and the State Security Services, authorized to carry out an operation-search measure, were involved in training on legislation and human rights standards.

It was also noted that the applicants, were law-abiding citizens, engaged in public and political activities, and were not engaged in criminal activities. As such the targeting of these individuals with Pegasus, was politically motivated and criminal given the absence of any mandatory, investigative, or judicial acts, within the scope of the Code of Criminal Procedure (CPrC) Article 177.3.5, and as a result, the use of Pegasus on their devices was in violation of targeted users’ rights and freedoms.

According to Article 443.1 of the CPrC, investigative actions over mobile phones and other communication devices are usually carried out on the basis of a judicial act. In the cases where these investigative actions are carried out without a court decision, on the basis of the investigator’s reasoned decision, after the completion of the corresponding investigative action, the investigator must inform the court conducting the judicial control and the prosecutor conducting the procedural management of the preliminary investigation within 24 hours and verify the legality of the investigative action carried out within 48 hours.

According to Article 215.1 of the CPrC, it is mandatory to conduct a preliminary investigation in all criminal cases, except for the investigation conducted in the form of simplified pre-trial proceedings for crimes that do not cause a great public danger.

Moreover, when responding to the lawyers’ complaints, the Prosecutor General’s Office, determined that the applicants’ complaints had to be sent to the Investigative Directorate of the SSS. Which is contrary to Article 215 of the CPrC and was contested by the lawyers who submitted a complaint to a local district court. The lawyers argued that it was illegal and unreasonable for the General Prosecutor’s Office to forward the complaint to the SSS for further investigation without any justification. At the same time, the transfer of the pre-trial investigation to the SSS, which is (potentially) a party of interest in the case, violates the procedural rights of the applicant on the personal life and freedom of expression, as well as the right to the effective remedy provided by Article 13 of the ECHR (taken together with Articles 8 and 10), because SSS will not be able to carry out the work related to the alleged illegal actions of its employees in accordance with the principle of objective impartiality. In addition, there are no normative legal grounds that could demonstrate the objective independence of the Investigative General Department of the SSS from other structural divisions of the Security Service.

Explainer: Lawyers reasoned that Pegasus was provided to the police and security agencies. From this point of view, based on the circumstances of the case, there are sufficient grounds to assume that the listening and online monitoring of the complainant was carried out by an employee (colleagues) of the police and (or) security agencies. In such a case, the prosecutor’s office cannot hand over the case of the preliminary investigation to the investigative body of the institution that carried out such hearing and monitoring. Otherwise, such an investigation would be subject to a conflict of interest in the case. In this regard, the elimination of conflict of interest in the investigation of a criminal case is one of the requirements of the criminal procedural legislation. Summarizing the above, it becomes clear: a) referral of the complaint to the State Criminal Court is a violation of the investigative responsibility defined in Article 215.2 of the Criminal Procedure Code; b) referral of the complaint to the DTC contradicts the principle of conflict of interests contained in Article 1.1 of the CPrC; c) referral of the complaint to the DTC is a violation of the human rights of potential victims (interested persons) defined by Article 1.4 of the CPrC, in this case, the right to request an effective procedural investigation; d) the referral of the complaint to the State Prosecutor’s Office is a contradictory decision and gives the impression that legal proceedings have been initiated to listen and monitor the complainant, as well as this referral was carried out by the wrong structural unit of the General Prosecutor’s Office.

Responses of law enforcement authorities

The General Prosecutor’s Office’s response to complaints was to forward the complaints to the State Security Service (SSS) for further investigation, without informing the applicants and without providing any explanation for the reasons for doing so.

The SSS, in all four groups of cases, refused to give an official written answer to the applicants about the investigation of their complaints (although they are required to do so by law). Officials from SSS informed lawyers verbally, that SSS did not monitor the applicants through Pegasus and therefore no written responses would be given.

As a result, advocates representing all four groups filed lawsuits against the General Prosecutor’s Office and the SSS for inaction and refusal to launch a criminal investigation.

It was not until August 2022, that the SSS started to summon a number of civil society members and journalists (applicants) to obtain their testimonies in regard to allegations of the tracking of their phones by the Pegasus software. Reflecting on the delayed response, one of the targeted civil society activists, and the chairperson of Election Monitoring and Democracy Studies Center, Anar Mammadli, said this was simply a sign of lack of action. 

In their responses to some of these complaints, the General Prosecutor’s Office and the Ministry of Internal Affairs said it was not possible to conduct an investigation on the complaint. Moreover, in relation to some of the applicants, in their response, the General Prosecutor’s Office, said, “the information on the features of capturing and tracking personal secret information was not determined by means of the Pegasus spy program,” but stopped short of explaining how then the information was obtained if it was not through Pegasus.

Since the engagement of advocates in pursuing these cases in domestic courts, the proceedings in all four groups are pending at different instances. Only 15 applicants were sent to the Strasbourg Court thus far. Advocates are currently seeking to exhaust domestic remedies to apply to the ECHR in the remaining cases.

Conclusion and next steps in taking the Pegasus cases to the European Court of Human Rights

In addition to the Constitution and other national laws of the Republic of Azerbaijan, the right to privacy is recognized as an international human right in numerous international treaties to which Azerbaijan is a party. As a signatory of the European Convention on Human Rights and the International Covenant on Civil and Political Rights, Azerbaijan has binding obligations to protect rights to private life, including private communication and other private data, from infringements, including unlawful search-operation and surveillance activities of law enforcement authorities and any interference by third parties.

On September 20, 2009, Azerbaijan ratified the Council of Europe Convention of 1981 (Convention for the Protection of Individuals with regard to Automatic Processing of Personal Data (ETS No. 108) for the protection of personal data which also falls within the scope of private life as protected by Article 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR) making its application in Azerbaijan compulsory.

The ECHR reiterates that any interference can only be justified under Article 8, paragraph 2, if it is in accordance with the law, pursues one or more of the legitimate aims to which paragraph 2 of Article 8 refers, and is necessary in a democratic society in order to achieve any such aim (see Kennedy v. the UK, paragraph 130). 

In the context of handling complaints related to Pegasus cases by Azerbaijan’s law enforcement agencies and courts, the lawyers demonstrated, that the applicants were subjected to interferences to their right to private life contrary to the adopted national and international human rights documents. The lawyers’ subsequent complaints were related to the law enforcement and judicial authorities’ refusal to investigate complaints about those interferences, including secret surveillance without providing any explanations and sound reasons.

In all four groups of Pegasus litigations, the secret surveillance of mobile devices had no basis in domestic law as none of the applicants were declared as suspects or accused persons in any criminal investigations.

The Strasbourg Court has delivered many rulings on the protection of privacy and personal data against government-sponsored surveillance or state responsibility to protect individuals from violence by third parties (Guide on Article 8 of the European Convention on Human Rights. Right to respect for private and family life, home, and correspondence. Updated on 31 August 2021. Para 107.) In order for surveillance to be in line with the Convention, certain legal safeguards should be provided both in legislation and practice, according to the case law of the ECHR.

Explainer: the law must be precise and clear as to the offences, activities and people subjected to surveillance, and must set out strict limits on its duration, as well as rules on the disclosure and destruction of surveillance data. Rigorous procedures should be in place to order the examination, use and storage of the data obtained, and those subjected to surveillance should be given a chance to exercise their right to an effective remedy. The bodies supervising the use of surveillance should be independent, and appointed by and accountable to parliament, rather than the executive.

At the moment, advocates and lawyers, are in the process of developing their clients’ applications to the ECHR alleging that the laws governing the matters of secret surveillance, as applied in practice, and also the refusal of the law enforcement authorities and courts to investigate allegations of surveillance, do not provide sufficient safeguards against arbitrary or abusive secret surveillance and/or accessing of private communications data. Lawyers also complained they had no effective remedy – domestically – in respect of those breaches which can be achieved through national legislation that strictly abides by the case law of the ECHR. The lawyers alleged that no effective remedy was available under Azerbaijani law and that SSS’s investigation could not be rendered effective since it is not an impartial and objective institution to review allegations of possible abuses and arbitrariness of its own officials. As regards the surveillance, a State could arguably be liable in respect of whatever system of surveillance without offering adequate and effective guarantees against abuse according to the well-established case law of ECHR.

According to Azerbaijan’s criminal law system, there are two judicial procedures that may be used by an individual wishing to complain about the acts of the investigative authorities:

  • complaint to supervisory-review and
  • judiciary (first and appeal court instances) under the CPrC.

However, as seen throughout the domestic litigation process in the course of the last year, the domestic courts stated clearly that the General Prosecutor’s Office forwarding the complaints to the SSS were not subject to judicial review, and the SSS’s lack of action was also not viewed as a sufficient ground to allow judiciary review. This makes it unacceptable that an individual cannot lodge such a complaint without having at least the concrete decision of the investigative authorities, which in fact, constitutes de-facto rejection to investigate the complaint containing allegation about a criminal act committed against him/her. In the absence of domestic remedies against potential surveillance measures under Azerbaijani law, an individual would hardly ever be able to have his/her right to effective remedies, respected and ensured. 

Explainer: In this connection, the case law of the ECHR notes that ‘In the sphere of secret surveillance, where abuses are potentially easy and could have harmful consequences for a democratic society as a whole, it is in principle desirable to entrust supervisory control to a judge, judicial oversight offering the best guarantees of independence, impartiality and a proper procedure (Roman Zakharov v. Russia [GC], § 233; İrfan Güzel v. Turkey, § 96).’ The absence at the national level of a judicial review of the law enforcement authorities reactions (inaction or refusal to investigate without a decision) to the complaints of individuals containing alleged unlawful surveillance and other infringements of the right to privacy excludes the state’s obligation to strike a fair balance between the competing public and private interests.

Therefore, Article 8 of the ECHR likely be found as violated without the opportunity for judicial review of the inaction of law enforcement authorities constituting de-facto rejection to investigate the complaint containing allegations of violation of the privacy of individuals as they had not benefitted from the minimum degree of protection against abuses and arbitrariness. According to the case law of the ECHR, the absence of a judicial review of the overall covert surveillance system which was entrusted solely to the state body which was directly involved in requests for the use of special surveillance means amounted to a violation of Article 13 in the light of Article 8 owing to the lack of an effective remedy (see: Association for European Integration and Human Rights and Ekimdzhiev v. Bulgaria, 2007, §§ 98-103).

As such these litigations expose that surveillance software not only harms individuals unlawfully targeted but also raises the question of insufficient legal guarantees in place to protect generally all individuals against possible unlawful surveillance and other kinds of privacy violations.

Finally, these litigations highlight the insufficient legal guarantees both in national legislation and practice, by creating significant legal precedent at ECHR, and by publicly uncovering and highlighting the inadequate national legislation which potentially can lead to gross human rights violations. Therefore, there is a greater need to challenge both national laws and the practice of state authorities’ system of secret surveillance, as the current system constitutes potential risks for interference with the rights of all users of telecommunication services guaranteed by the Convention and national laws.

in Azerbaijan rape survivor continues to face harassment online by the perpetrator

Asgar Agazade was arrested last year following an accusation by a rape survivor. His victim, is an activist, Sanay Yagmur. Agazade has denied the accusation from the start however, seven months into the ongoing investigation and the trial, he is now facing a possible seven-year prison term. In addition, new evidence based on Agazade’s own statement now reveals that the perpetrator continued harassing and threatening Yagmur online.

The new evidence emerged during the hearing on June 22, in which, Agazade confessed hacking Yaghmur’s email address and obtaining private information about her travel itinerary which his family then used to target the activist on social media platforms and leaking the false information to local media with the goal of humiliating and further threatening the activist. The perpetrator’s family, alleged Yaghmur was lying about her studies abroad [Yaghmur left for her master’s degree last fall.] 

Lawyer Zibeyde Sadigova, who represents Yagmur, said unlawfully obtaining personal information, and spreading it, is a criminal act in itself. However, no further steps have been taken to investigate this criminal act. 

Some, including Yagmur’s family, suspect that the perpetrator was not acting alone in hacking into Yagmur’s email and obtaining private flight information and that the State Security Services was on the case as well. 

In a separate blackmail attempt, the perpetrator’s family alleged in an interview with a website Axar.az that Yagmur lived in Istanbul and was married to a woman. The claim was later retracted by the perpetrator’s sister in an interview aired on the YouTube show “Let’s talk straight.”