Observation (CEACR) - adopted 2015, published 105th ILC session (2016)

Abolition of Forced Labour Convention, 1957 (No. 105) - Azerbaijan (Ratification: 2000)

Article 1(a) of the Convention. Sanctions involving compulsory labour as a punishment for expressing political views or views ideologically opposed to the established political, social or economic system. In its previous comments, the Committee drew the attention of the Government to several provisions of the Criminal Code, enforceable with sanctions involving compulsory labour, in accordance with section 95 of the Code on the Execution of Sentences, which are worded in terms broad enough to lend themselves to application as a means of punishment for the expression of views opposed to the established political, social or economic system. The Committee therefore requested the Government to provide information on the application of the following sections of the Criminal Code:

• – section 147, which provides that defamation, defined as “dissemination, in a public statement … or through the mass media, of false information discrediting the honour and dignity of a person”, is punishable with correctional work or imprisonment, both involving compulsory labour;
• – sections 169.1 and 233, read together with sections 7 and 8 of the Act on freedom of assembly, which provide that “organization or participation in a prohibited public assembly” and “organization of group actions violating public order”, respectively, are punishable with correctional work or imprisonment, both involving compulsory labour; and
• – section 283.1 of the Criminal Code, which provides that “inflaming the national, racial or religious enmity”, is punishable with imprisonment, involving compulsory labour.

The Committee notes with regret that the Government has not provided information on the application in practice of the sections of the Criminal Code referred to above, and mainly reiterates the information previously provided to the Office. The Committee previously referred to two judgments handed down by the European Court of Human Rights in 2008 and 2010, which found that convictions based on section 147 of the Criminal Code, involving compulsory labour, constituted a breach of Article 10 of the European Convention on Human Rights, which protects freedom of expression (Fatullayev v. Azerbaijan, application No. 40984/07, judgment of 22 April 2010, and Mahmudov and Agazade v. Azerbaijan, application No. 35877/04, judgment of 18 December 2008). The Committee notes the Government’s indication that, as a result of these decisions, the Supreme Court has presented to Parliament proposals in order to repeal criminal responsibility for defamation, according to which defamation should only incur punishment in the form of a fine. The Committee notes that, as highlighted by the report of the Office of the High Commissioner for Human Rights in the framework of the Universal Periodic Review, the criminal defamation legislation remains in place which has in practice a chilling effect on freedom of expression and has contributed to widespread self-censorship in the country (A/HRC/WG.6/16/AZE/3). Moreover, the Committee notes that, although the Government requested the assistance of the European Commission for Democracy through Law (the Venice Commission) to draft a law on protection against defamation, the Government adopted amendments in 2013 to widen the scope of section 147 of the Criminal Code. These amendments introduce criminal liability for defamation committed “through a publicly displayed Internet information resource”, despite the Government’s commitment to decriminalizing defamation and the ongoing cooperation with the Venice Commission (CDL-AD(2013)024). The Committee notes that the first criminal conviction on charges of defamation online was handed down on 14 August 2013.

Furthermore, the Committee notes that, on 22 May 2014, the European Court of Human Rights handed down a judgment concerning a case of imprisonment on charges of “organizing public disorder” (section 233 of the Criminal Code), subsequently replaced by the more serious charge of “mass disorder” (section 220.1 of the Code), in which it stressed that the actual purpose of the impugned measures of imprisonment was to silence or punish an opposition politician for criticizing the Government and attempting to disseminate what he believed was the true information that the Government was trying to hide (Ilgar Mammadov v. Azerbaijan, application No. 151172/13, judgment of 22 May 2014).

In this regard, the Committee notes that, as highlighted by an important number of United Nations and European institutions and bodies, a growing tendency has emerged in recent years to apply various provisions of the Criminal Code as a basis for the prosecution of journalists, bloggers, human rights defenders and others who express critical opinions, under questionable charges which appear politically motivated, resulting in long periods of corrective labour or imprisonment, both involving compulsory labour (A/HRC/WG.6/16/AZE/3; Interim Resolution CM/ResDH(2014)183 adopted by the Committee of Ministers of the Council of Europe on 25 September 2014; CommDH(2013)14; CommDH(2015)5). In this regard, the Committee observes that the following provisions of the Criminal Code are often used for the following offences, all of which are punishable with corrective labour, deprivation of liberty or imprisonment, all involving compulsory labour: insult (section 148); embezzlement (section 179.3.2); illegal business (section 192); tax evasion (section 213); hooliganism (section 221); state treason (section 274); and abuse of office (section 308).

The Committee notes that, in September 2015, both the United Nations High Commissioner for Human Rights (OHCHR) and the European Parliament in its resolution of 10 September 2015, strongly condemned the unprecedented repression of civil society and independent voices in Azerbaijan who have been deprived of their liberty simply for exercising their right to freedom of expression, association or peaceful assembly, as well as for defending the rights of others, and thus urged the state authorities to end the practices of selective criminal prosecution and imprisonment of journalists, human rights defenders and others who criticize the Government (2015/2480(RSP) and OHCHR Press Release, 8 September 2015). In this regard, the Committee notes that the United Nations High Commissioner for Human Rights, together with several United Nations Special Rapporteurs and the Chair-rapporteur of the United Nations Working Group on Arbitrary Detention, as well as the Council of Europe Commissioner for Human Rights and the Organization for Security and Co-operation in Europe (OSCE) also indicated that they were alarmed at the wave of politically motivated repression of activists in reprisal for their legitimate activities, and condemned the politically motivated prison sentence of Ms and Mr Yunus to eight-and-a-half and seven years’ imprisonment, respectively, as well as Ms Khadija Ismayilova to seven years’ imprisonment on charges, inter alia, of state treason, illegal entrepreneurship, tax evasion and abuse of office (OHCHR Press releases, 8 September 2015, 20 August 2015 and 19 August 2014, OSCE Press releases, 1 September 2015 and December 2014).

Noting all this information with deep concern, the Committee once again draws the Government’s attention to the fact that legal guarantees of the rights to freedom of thought and expression, freedom of peaceful assembly, freedom of association, as well as freedom from arbitrary arrest, constitute an important safeguard against the imposition of forced or compulsory labour as a punishment for holding or expressing political or ideological views, or as a means of political coercion or education (2012 General Survey on the fundamental Conventions, paragraph 302). The Committee therefore strongly urges the Government to take all necessary measures, in both law and practice, to ensure that no penalties involving compulsory labour may be imposed for the peaceful expression of political views opposed to the established system, for example by clearly restricting the scope of these provisions to situations connected with the use of violence or incitement to violence, or by repealing sanctions involving compulsory labour. The Committee requests the Government to provide information on any progress made in this respect, as well as information on the subjects of the court decisions handed down under the provisions of the Criminal Code referred to above, indicating the penalties imposed.

The Committee is raising other matters in a request addressed directly to the Government.