How fair is Tofig Yagublu�s caution?

On August 22, 2019 the General Prosecutor"s Office and the Ministry of Internal Affairs made a joint declaration[1] as follows:

"The General Prosecutor"s Office investigation revealed that a resident of Baku, Tofig Yagublu by means of Facebook social network page intentionally and maliciously disperses dissonant information and feeds distrust for government measures, makes attempts of provocation aimed at involving citizens into illegal actions against the authorities, instigates illegal actions of protest directed to violating the social-political stability in the country".

The declaration adds the following: "In this connection Т. Yagublu was invited to attend the General Prosecutor"s Office. Pursuant to the Law of the Azerbaijani Republic "On Prosecutor"s Office", he was officially warned that if he would go one with spreading information aimed at violating the social-political stability in the country, to thus discrediting goal-oriented actions of the government, he would face more serious statutorily provided measures, including institution of criminal proceedings against him".

The following offers: "Cautioning social network users, the General Prosecutor"s Office and the Ministry of Internal Affairs informs that actions directed to feeding distrust among citizens to government measures, urging citizens to hold illegal actions of protest, other illegal actions aimed at violating the social-political stability in the country, violent assumption of power and violent change of the constitutional order of the Azerbaijani Republic, will be severely suppressed".

The declaration is open for serious legal debates. Every clause has to be analyzed individually.

1. The General Prosecutor"s Office and the Ministry of Internal Affairs, viewing thoughts not of ordinary citizen but a member of Musavat"s Divan and the National Council, cautioned him. In so doing, these state bodies are guided by an allegation that "Tofig Yagublu by means of Facebook social network page intentionally and maliciously disperses dissonant information and feeds distrust for government measures".

As is known, the government is an executive branch of state power while the opposition is a political opponent of the government. Note that an opposition politician may revise and even harshly criticize measures of the government. This is a behavior typical for democratic society within the framework of the freedom of expression. Note that the General Prosecutor"s Office"s warning for the opposition politician for criticism of the authorities is, along with invasion in the political process, a misuse of statutory powers and an unlawful interference with the freedom of expression.

2. Requirements of Article 63 of the Constitution are are legally binding for procuracy and law-enforcement bodies as well. Note that clause 1 of Article says: "He who is charged with commission of a crime is presumed to be innocent until his guilt has been proved under the statutory procedure and court verdict taken effect" (https://www.caa.gov.az/index.php?option=com_k2&view=item&id=93:constitution-of-the-republic-of-azerbaijan&Itemid=173&lang=ru).

However, the General Prosecutor"s Office and the Ministry of Internal Affairs" joint declaration says the following: "It has been revealed that Tofig Yagublu is engaged in prevocational attempts aimed at violating the social and political stability". It is considered to be a criminal behavior, and he is presented to society as perpetrator.

It is important to note that actions mentioned by the Prosecutor"s Office are in accord with crimes as set forth in Chapter 25 of the Criminal Code of the Azerbaijani Republic. Without an appropriate judicial process and court verdict the Prosecutor"s Office presented Tofig Yagublu as a person who intentionally and maliciously disperses information incompatible with reality to thus create his criminal image.

3. In all probability, the General Prosecutor"s Office initiated the caution on the basis of Articles 21 and 22 of the Law of the Azerbaijani Republic "On Prosecutor"s Office". One cannot forget that "a prosecutor is entitled to pass a caution in accordance with the procedure as set forth in Article 21.

It should be remembered that the criticism of government activity, its disapproval or even contestation, appeal to the public opinion and partners, messages from opposition figures are to be viewed within the framework of the freedom of thought. Not a single law specifying the framework of the freedom of expression; not a single structure, including the Prosecutor"s Office but court, is authorized to interfere with the freedom of expression. Interference is allowed as required by the law.

4. The law-stipulated framework is based on the Constitutional Law-2002 "On Restriction of Human Rights and Freedoms" which provides for imposing restrictions on Articles 47 and 50 of the Constitution. Allowing for the fact that the parliament of Azerbaijan ratified the European Convention on Human Rights, its Article 10 is valid in our country as well. A resolution of the Plenum of the Supreme Court of the Azerbaijani Republic dated March 30, 2006 № 5 "On Application of Provisions of the European Convention Оn protection of human rights and fundamental freedoms at ministering of justice" and precedents of the European Court on Human Rights also recommend courts to comply with this framework.

5. When adjusted for the fact that Article 10-stipulated freedom of expression is under the jurisdiction of the European Court on Human Rights, interference with the freedom of expression is meant to be regarded within the framework of ECHR decisions. As taken in the context of the European Court experience arising from the freedom of expressing as set forth in Article 10, it is obvious that T. Yagublu" views published on Facebook page are meant to be interpreted within the framework of this freedom. The point that as far back as in 2009, case "Times Newspapers Ltd vs. The United Kingdom (№ 1 and № 2)" regarded electronic information systems as expanse for disseminating information within the framework of the right to freedom of expression.

The European Court on Human Rights opines that the freedom of expression matters most as human"s fundamental right, as basis of democracy and other human rights. The Court frequently refers to the case of Lingens vs. Austria (1986, §42) as saying the following: "In general, it may be said that the freedom of political discussion is the basis of the concept of democratic state that runs across the Convention" (http://www.echr.ru/documents/doc/2461413/2461413.htm).

It should be added that "Clause 2, Article 10 extends not only to "information" or или "ideas" believed to be or conceived as fastidious but also to information and ideas that seem to insulting, shocking or worrying. Тhese include pluralism, tolerance and liberalism requirements, and no "democratic society" can ever exist without them ... "

It must be recognized that the European Court on Human Rights emphasizes the necessity of upholding statements of political content, as well as other statements on wide range of issues. In many case the Court asserts the right to presentation of harsh and openly critical information about government"s activity, political debates and violations.

6. The end of the joint declaration said that "....he was officially informed that if he will henceforth continue disseminating information directed to violating the social-political stability and discrediting the goal-oriented activities of the state among citizens, he will be brought to criminal responsibility as set forth in the legislation ".

A question arises: if "dissemination of the information discrediting goal-oriented activity of the state (government!) among the citizens" is an act of criminal responsibility, why should not open a criminal case against a person? In the meanwhile, he is faced with criminal indictment in future? Procuracy authorities are meant to obey laws without exceptions. If a crime has been established, it is required to immediately initiate a criminal case.

The same is true of the statutory requirement of Article 38.1 of the Criminal Code of the Azerbaijani Republic: "Inquiry officer, investigator or prosecutor, having got a message about actions carrying signs of a crime already committed or ready to be committed, or having discovered a criminal act, are meant to take statutory measures for preservation and withdrawal of vestiges of a crime, as well as immediately perform an inquest or investigation within the limits of his authorities" (http://continent-on line.com/Document/?doc_id=30420280).

7. In spite of the fact that the joint declaration says that "Tofig Yagublu by means of his page in Facebook" admitted some violations of the law and even malefaction and will possibly be brought to criminal responsibility" but no proofs are produced and no words or statements by Tofig Yagublu cited. No quotations are cited from his statements and articles. All these go to show that the point here is about political put-up job. In other words, there is open interference with a human right to the freedom of political expression.

[1] https://azertag.az/xeber/1320673