LGBT community forced police to accept legal rights of sex minorities

In March, the European Court of Human Rights handed down a dozen judgments and rulings against Azerbaijan in cases ranging from the already familiar election violations to property disputes. Among them there was a rather exotic for European jurisprudence on our country: the "case of A and others v. Azerbaijan" (no. 17184/18), which concerned a whole bunch of violations against 24 transgender persons, i.e. men who identify themselves as women. The case is interesting primarily because it is the first time that the government has recognized the problems of this category of citizens.

Head of the Human Rights Centre of Azerbaijan Eldar Zeynalov commented for Turan on the ECtHR verdict on the scandalous story, when a "hunt" for transgender people was launched in Baku for several days in the second half of September 2017. Police later announced that it was to combat homosexual prostitution and to try to identify HIV-positive people. Although transgender persons were detained primarily on the basis of their appearance, the reason for detention was a variety of administrative offences: violation of public order, failure to carry an identity card, disobedience to the police, and swearing in public places.

Eldar Zeynalov believes that the reason for the detentions is obvious: although prostitution of either sex is an administrative offence in our country, it is regarded as a female occupation by default, and dressing up in the clothes of the other sex is not prohibited at all, and prosecution on this basis alone is considered discrimination under the law.

According to the human rights organization "Amnesty International", at least 150 homosexuals were detained by the police during raids in Azerbaijan. Most of them were released at the same time; however 60 of them were administratively arrested for 10-30 days. Of these, only one-sixth applied to the courts and reached the ECtHR, hiding their names under the letters of the Latin alphabet from A to X. One of the applicants died at the age of 21, two years after the complaint was lodged in Strasbourg, but his relatives did not submit a death certificate to the ECtHR. This man's complaint, as well as four other applicants who for some reason avoided contacts with their lawyers after the complaint was lodged (two of them were still in prison, but on some criminal charges, probably unrelated to the incident), were excluded from consideration by the ECtHR.

The applicants claimed police ill-treatment in detention and imprisonment (Article 3 of the European Convention on Human Rights), unlawful and arbitrary deprivation of liberty (Article 5), unfair trial (Article 6), interference with privacy, in particular forced medical examinations without a court order (Article 8) and discrimination (Article 14). Prominent organizations such as "Civil Rights Defenders", "ILGA-Europe" and "Redress Trust" have shown interest in the case and intervened as a "third party".

According to Zeynalov, the applications of the victims of violence to the ECtHR prompted the government after the communication of complaints in the summer of 2019 to offer the victims an amicable settlement, which the applicants refused. At that time, the Azerbaijani authorities proposed a unilateral declaration to the ECtHR, in which they recognized the violation of the rights of the applicants guaranteed by the convention (without specifying which ones). As for the compensation, the government offered to recognize these violations and to pay 125,000 euros of compensation for moral damage to the applicants. For the costs of 5 foreign and 11 local lawyers, EUR 3,000 was proposed (in total for all of them).

In October 2019, the applicants disagreed with the proposed conditions. In particular, they were dissatisfied that the authorities had not specifically identified the ECtHR articles violated; that they had not undertaken to investigate allegations of tortures and ill-treatment, fearing that the CoE Committee of Ministers would not be able to follow up on the implementation of the declaration.

The ECtHR agreed that "it would have been preferable for the declaration to be more specific as to the recognition of a violation of the Convention", but that "the declaration recognizes violations of the Convention articles alleged by the applicants in their complaints". Given that the amounts of compensation offered by the Government were commensurate with those paid in similar cases, the ECtHR considered it possible to apply Article 37§1(c) of the Convention and withdraw the case.

E.Zeynalov is sure that despite the scale of this case, which brought together 24 complaints, and its non-triviality for Azerbaijan, nonetheless, no precedent has been created analyzing the practice of the state's attitude towards people with "non-traditional" sexual orientation.

From this point of view, one can agree with the applicants that the judgment handed down by the European Court of Justice did not create a formal basis for the monitoring of the situation of the LGBT community in Azerbaijan, where several incidents of murder and suicide occurred after the events described in the case. However, one cannot but recognize that after transgender persons filed complaints to the ECtHR, mass round-ups against them, probing public opinion about the creation of a "morality police" and other manifestations of intolerance stopped.