“It is undeniable that such decisions seriously affect the right to respect for private life”

On December 6, by the decision of Prime Minister Ali Asadov, the "List of types of technical means intended for obtaining information covertly during operational-search activities" was expanded. Items 17-24 were added to the list with the following content:

• Multi-channel recorders for recording human psychophysical reactions;
• Multifunctional technical means for detecting transmitted data and covertly placed technical devices, including radio equipment designed to determine and monitor the location of radio broadcasting devices;
• Technical means for transmitting, processing, amplifying, and modifying acoustic data over distance;
• Small-sized technical means (less than 50x50x50mm) for amplifying, processing, recording, storing, and displaying video and/or audio data;
• Technical means for transmitting and optically or optoelectronically modifying images;
• Transmitter-receiver radio equipment operating outside the radio broadcast frequency range;
• Technical means and software for multi-channel (two or more lines) recording of telephone conversations;
• Covert portable radiolocation and radionavigation devices for conducting monitoring and searches in radio transmissions.

What does this mean? What is its purpose? Is it consistent with the principle of inviolability of private life?

Lawyer and head of the Media Law Group, Khalid Agaliyev, answered ASTNA's questions on the topic.

* * *

Question: Mr. Khalid, the list of “technical means intended for covertly obtaining information during operational-search activities” was expanded by Prime Minister Ali Asadov’s decision on December 6. What does this mean? What is its purpose?

Answer: Normally, such decisions should not cause too much concern, of course, under normal circumstances. It is the duty of the state and its relevant institutions to protect citizens' lives, health, rights and freedoms, national security, and public interests from criminal acts. One way to ensure this protection is through operational-search activities conducted by relevant authorities. These activities are not only carried out by visible, identifiable methods but also through covert means. Technical means are one of the details of covert activities. There may be threats to citizens' lives, rights and freedoms, and national security where the most optimal solution is the covert use of technical means, and in such cases, the use of these tools by relevant agencies should not be viewed as unusual. Particularly in the last few decades, technological progress has been unimaginable, and it is normal for authorized agencies to update and expand tools used legitimately for citizens’ rights and freedoms and national security.

Question: In Azerbaijan, secretly recording audio or using images without consent is prohibited by law. However, such a decision by the Prime Minister raises questions. Who will benefit from this decision the most?

Answer: During the last referendum, even the Constitution was amended to include provisions regarding covert recordings and data. This is a general principle. However, this prohibition does not prevent a citizen from filming or exposing criminal actions. Although secret recording and the use of images are legally prohibited, you can record and publish a corrupt official. Under the general legislative system, you will not be held accountable for this. You are not liable because by exposing publicly dangerous acts, you are effectively performing a public service, similar to that of police or prosecutors, and protecting public interest. This right is not unique to journalists. Various others, including those conducting operational-search activities to protect citizens, national security, and individual rights, also have such rights. These rights come into play under the law when protecting human life, health, freedoms, and national security from criminal threats. Therefore, technically, this is not a matter of immediate concern. What matters is the substance of the decision and how it is applied. This requires a very measured approach.

Question: Is this right from a human rights perspective? Does it interfere with private life?

Answer: The use of such methods during operational-search activities forms the most complex aspect of the human rights debate. As mentioned earlier, these activities are carried out to protect human life, health, rights, legal interests, and national security. The information obtained during such activities must be used solely for these purposes. If information obtained to prevent a public danger or crime is misused—e.g., for blackmail, discrediting someone, or coercion—this would constitute a grave violation of human rights.

Question: Won’t this lead to abuse? Can it be used for purposes other than intended?

Answer: This is not a new decision; the Cabinet of Ministers adopted the original decision 25-30 years ago, and these are merely amendments. It is a very serious decision in terms of its goals, regulatory framework, and related rights, and such decisions deserve careful scrutiny. It must be discussed in the context of the right to respect for private life. The main concern with the current decision is its implementation. Unfortunately, experience shows we cannot be optimistic because we have often seen information obtained through operational-search activities being leaked to the media. Given this history, it is difficult to say that the new regulations will strictly serve their intended purpose. However, viewed more broadly, it is undeniable that such decisions seriously affect the right to respect for private life.

Question: Can this decision legitimize covert surveillance or systems like Pegasus?

Answer: Like the well-known comparison, a knife can be used to slice an apple or commit a crime. The same applies to Pegasus or similar software. If such tools are the only means to prevent serious and real threats to public safety, they should likely be used legitimately. Whether covert or overt, these tools must be used within the boundaries of the law and for lawful purposes. If such tools are used to discredit individuals or damage political opponents, this is unacceptable and incompatible with human rights.

Question: Do states have freedom regarding the use of covert surveillance and wiretapping tools? What are the international standards on this issue, and what do you propose?

Answer: States do not have absolute freedom; the right to respect for private life is a very important right, and there are corresponding standards and measures in the international legal system, of which Azerbaijan is a part. Covert surveillance, wiretapping, and monitoring can be regulated by law, but the key is how these laws are applied. The European Court of Human Rights’ jurisprudence explains these matters clearly.

For instance, in the Klass and Others v. Germany case, the court found that the mere existence of a legal system allowing covert surveillance, regardless of its application, constituted a violation of the right to respect for private life. Even if a person could not prove they were being monitored, they had the right to claim they were victims of such laws.

In conclusion, laws allowing covert surveillance must be clear, of high quality, and include safeguards to protect individuals' rights within the context of private life. The implementation of such measures must be proportional to lawful objectives and sufficiently justified.