“There is no legal explanation for sanctions put on pension cards of family members of journalists”

Those arrested in connection with AbzasMedia - director Ulvi Hasanli, editor-in-chief Sevinj Vagifgizi (Abbasova), journalists Nargiz Absalamova and Hafiz Babali, as well as their relatives and those interrogated as witnesses in this criminal case, had their bank accounts and property subjected to asset freeze, and their exit from the country was restricted. It was also decided that they should submit information about their tax payments and share ownership to the Baku City Main Police Department.

The bank accounts of the family members of the arrested head of Kanal 13 Internet Television, Aziz Orujov, have been frozen. According to his wife Lamiya Azizova, both his wife's bank account and his mother's pension card have been blocked.

After the arrest of Aziz Orujov, the executive director of Kanal 13 Internet Television, the Ministry of Internal Affairs raised the issue of blocking access to the media outlet headed by him. The court upheld the claim and issued a blocking order.

Aziz Orujov was charged under Article 188.2 of the Criminal Code (Arbitrarily carrying out construction or installation works on a plot of land without ownership, use, or lease rights). On December 19, Aziz Orujov was additionally charged under Article 206.3.2 of the Criminal Code (smuggling - committed by a group of persons who colluded in advance).

Lawyer Tural Aghayev explained to ASTNA whether these steps taken against imprisoned journalists were correct from a legal point of view.

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Question: Tural Bey, to what extent is it legal to freeze the bank accounts of arrested journalists, including family members?

Answer: It is necessary to distinguish between the freeze of the assets and bank accounts of the accused and the freeze of the assets of their family members. Article 248.2 of the Code of Criminal Procedure divides the persons whose property can be sanctioned into two categories: a) accused person; b) persons on whom property liability can be imposed.

Therefore, the legislation provides for the freeze of the property of the accused persons. However, the legislation does not specify who can be the persons on whom property liability can be imposed. The European Court touched on this provision in its judgment in the case of Rafig Aliyev. What is clear is that those persons must be persons on whom property liability can be imposed due to the actions of the accused. In this regard, the European Court referred to excerpts from the Commentary of the Code of Criminal Procedure. According to that commentary, the following can be considered "persons on whom property liability can be imposed": employer of the accused; financial institutions of relevant bodies due to the actions of officials; legal representatives of minors from fourteen to eighteen years of age, as well as persons considered incapacitated, etc. Apparently, the persons in this category should be those who have some responsibility for the actions of the accused.

However, family members of journalists are not included in the list of persons in this category. For the mentioned reasons, the freeze of their property and bank accounts is not provided for in the legislation. For the same reasons, the sanctions imposed on the property of not only the family members of journalists but also other employees of AbzasMedia have no legal basis. In the aforementioned case of Rafig Aliyev, the European Court came to the conclusion that it was illegal to impose sanctions even on the property of a suspect, not just a family member.

As for the freeze of the assets of the arrested employees of AbzasMedia and Kanal 13 as accused persons, the legislation shows that if there is sufficient evidence that the property was used as a tool or means in the commission of a crime, that it was the subject of a crime, that property was obtained or increased through crime, the property may be frozen. That is, there must be reasonable grounds for the freeze of property. In other words, the investigative body should have such facts or evidence that would give grounds for applying those sanctions. In particular, the freezing of bank accounts is a very serious restrictive measure. Depending on the circumstances of the case, for example, freezing a residential house and a bank account have different consequences. If you live in that house, the sanction on that property does not actually restrict your use of that house. However, the seizure of your bank account effectively deprives you of the source of funds to meet your daily expenses and thus seriously affects your livelihood. Therefore, even the freeze of the bank account of the persons of the category specified in the legislation should be applied in exceptional cases, the applied step should be proportional to the goal. In general, since the application of the articles against which they are accused in the case of the employees of the mentioned media organizations is controversial, this case calls into question the reasonableness of the investigative action of automatically freezing the property.

Journalists are accused of smuggling. However, there is an important nuance regarding the crime of smuggling. The approach of the European Court is also different here. So, the European Court believes that the factor that turns certain property into property obtained through crime is the manner of its acquisition. Let's apply the approach of the European Court to the current case and assume that those journalists smuggled certain funds into the country, in such a case, the amount brought into the country is not considered criminally obtained funds. Funds obtained by crime means that the manner in which the funds were obtained must be a criminal act. For example, if a person smuggles funds into the country and pays someone a certain amount for bringing these funds into the country, the amount paid for the transfer, not the amount taken, is considered to be obtained through crime. If the allegedly transferred funds are intended or used only for the purpose of committing a crime in the country, then it can be seized. Although the legislation provides for the seizure of the property of the accused persons for the reasons mentioned, on the one hand, the status of the funds allegedly transferred to the country and the lack of reasonable suspicion of the detention measure selected against the journalists, on the other hand, the lack of justification of the court decision regarding the seizure of property and the harshness of the measures taken, question the legality and proportionality of those decisions.

Question: In general, is it correct to put other people (even if it is a family member) in a difficult situation because of the accused mature person? From the point of view of human rights, is it possible to punish another for one person?

Answer: In cases of this category, one of the parties is the state. On the other hand, there is no victim in these cases. Such a situation relatively narrows the scope of steps to be taken by the state. The balance between the public interest and the rights of individuals must be maintained in such a way that the individual is not unnecessarily disadvantaged. As we mentioned in the case of journalists, almost daily expenses of their family members have been blocked. In such a case, the law enforcement agencies or the court can take such a restrictive step in exceptional cases and only in relation to the accused or the persons on whom property liability can be imposed, provided that they must seriously justify the step they will take and must show with evidence what public interests the freeze of bank accounts is caused by. However, in Azerbaijan, as a rule, the courts do not justify their decisions, which then leads to the violation of the rights secured by the European Court through the European Convention, and in this case, the right to property along with other rights. There is no need to justify the freeze of family members' property because such investigative action is illegal in any case.

Question: The pension cards of the parents of Ulvi Hasanli, Sevinj Vagifgizi, and Aziz Orujov have also been restricted. Pension cards are usually one-sided. That is, it is possible to withdraw the pension paid by the state from those cards. It is not possible to make any transactions with those cards. If so, what does the restriction of those cards indicate?

Answer: Let's assume that the legislation allows the freeze of the assets of the family members of the accused persons. Even if it were so, the legislation clearly states that not all properties, but property that has sufficient evidence of being used as a tool or means in the commission of a crime, being the subject of a crime, or acquired or increased at the expense of criminally acquired property, is subject to sanction. The pension card is a tool that facilitates the implementation of the state's obligations to citizens in the social sphere, and funds are transferred to this account only by the state. In this case, there is no legal explanation for sanctions put on the pension cards of the family members of the mentioned journalists.

Question: How can family members of arrested persons who face this situation restore their rights?

Answer: The only effective way for the family members of those who have faced such a situation is to apply to the appropriate court in the order of judicial control. But we say effective because the European Court considers this way effective. But in reality, in judicial review complaints, especially in the cases of government critics, this way is almost ineffective, and the chances of success through this defense are very low. For example, the seizure of the property of family members of the accused persons is not provided for in the legislation, and if this fact is not established, the court should reject the motion or consider the decision made by the investigative body to be against the law. After establishing this fact, there is no need for further investigation. However, this situation is not observed in our courts. Therefore, the main reason why advocates exhaust this appeal procedure is the requirement of the European Convention to exhaust local effective remedies for the application.

Question: After the arrest of Aziz Orujov, the executive director of Kanal 13 Internet Television, the Ministry of Internal Affairs raised the issue of blocking access to the media organization headed by him. The court upheld the claim and issued a blocking order. In 2017, the website of Kanal 13 was blocked. Since then, the channel has been operating on YouTube. What has the court decided to block now? Is it possible to block the YouTube channel in the country?

Answer: I have not been directly acquainted with the court decision on the blocking of Kanal 13. But as far as I know, it is written in the decision that the Kanal 13 information portal is blocked. The word "YouTube" is not used. But in practice, there was a court decision to block the YouTube channel. But how it will be implemented is under question. Experts in this field would know it better but I think that when such a decision is made, the final decision for its implementation should be made by YouTube. On the other hand, social networks, including YouTube, are widely used platforms not only by government critics but also by the government itself. Even after these platforms become more commercialized, the benefit they will provide is tied to the financial resources expended on them, and the government seems to be ahead of its rivals and critics in terms of resources. Therefore, although it is theoretically possible to block YouTube, in practice, such a step due to Kanal 13 is not reasonable. Because of the mentioned reasons, this will also affect the interests of the government.

Question: Aziz Orujov was charged under Article 188.2 of the Criminal Code (Arbitrarily carrying out construction or installation works on a plot of land without ownership, use, or lease rights). On December 19, Aziz Orujov was additionally charged under Article 206.3.2 of the Criminal Code (smuggling - committed by a group of persons who colluded in advance). How is the illegal construction related to the smuggling? What does all this mean?

Answer: Of course, a person can face two different charges at the same time or in succession. But the European Court takes such cases into account when determining whether Article 18 of the Convention has been violated in a certain case, i.e., the norm that prohibits the application of restrictions for any purpose other than the one intended by the Convention, in other words, with a political motive. Do such cases exist in the cases of journalists? For example, the fact that media organizations close to the government reported against the arrested persons prior to the arrests, conducting campaigns that harmed the reputation of those persons; the fact that these campaigns continue even after imprisonment; the sharing of information that is considered investigative secrets by those media organizations, the use of information that is exclusively owned by state institutions or certain companies in these campaigns; claiming that individuals are involved in anti-state projects without focusing on the alleged criminal act itself in reports and published articles; targeting aspects unrelated to the criminal act of which they are accused - their professional activities, rather than the alleged acts committed by those persons in the campaigns carried out; etc. are taken into account when assessing Article 18 as contextual evidence. If such an assessment is made, the fact that Aziz Orujov was charged with Article 188.2 and then Article 206.3.2 of the Criminal Code in a short period of time when all these events took place will probably be taken into account.