Imanov v. Azerbaijan: when are ulterior motives ‘necessary’ to review?

by dr Tobias Mortier

It is no secret that Azerbaijan’s human rights record is not particularly exemplary. Human rights defenders and civil society activists are increasingly oppressed and silenced. Amnesty International reports that critical voices in Azerbaijan are often imprisoned as punishment on account of their views. In its case law, the European Court of Human Rights (‘the Court’) has repeatedly found that Azerbaijan violated the Convention with its attempts at suppressing civil and political dissent, including in the recent case of Imanov v. Azerbaijan. Yet, while a violation of Articles 10 and 8 ECHR was found in this particular case, no violation was found as to the State’s motives behind these violations, creating the uncomfortable idea that the State’s tactics pursued a good cause. This blog post discusses the Court’s approach to purpose review (i.e. the review of legitimate aims and ulterior motives) in this case and identifies in what areas the Court could push for more effective protection of civil society in Azerbaijan.

Facts of the judgment

In this case, the applicant was a lawyer and member of the Azerbaijani Bar Association (‘ABA’), who represented an individual, A.H., who had been arrested on suspicion of, inter alia, preparing violent seizure of power. When the applicant went to meet A.H. in Gobustan Prison, where the latter was serving his sentence, A.H. informed the applicant of ill-treatment to which he had been subjected by the prison staff. The applicant shared this information with journalists and various media outlets, which subsequently reported on the applicant’s allegations. Some media outlets also explicitly named a number of prison guards who were allegedly involved with the ill-treatment according to the applicant. Public gatherings ensued in front of the prison buildings.

The next day, the head of the Prison Service requested the ABA to initiate disciplinary proceedings against the applicant, as he had made false and defamatory statements concerning prison staff. The Disciplinary Commission subsequently referred the case to the Presidium of the ABA, holding that the applicant had breached lawyer’s ethics by making unsubstantiated claims regarding ill-treatment of A.H., and in doing so had ‘damaged the honour and reputation of the prison staff and breached their right to presumption of innocence’ (para 18). The Presidium in turn referred the case to the Ganja Administrative-Economic Court, seeking the applicant’s disbarment. The Ganja Court found that the applicant ‘had failed to respect the reputation and the rights of others and had caused unwarranted anxiety among the relatives and family members of persons detained in prison’ by sharing the allegedly unsubstantiated claims in the absence of a court decision which confirmed the allegations (para 21). As a result, the applicant was disbarred. Further appeals against this disbarment decision proved fruitless.

In the meantime, A.H. had lodged an application with the Court to complain about the ill-treatment he had suffered at the hands of the prison staff, alleging that this amounted to a violation of Article 3. Following a unilateral declaration of the Azerbaijani government in which it acknowledged that Article 3 had indeed been violated in respect of the applicant, the Court agreed to strike this application out of the list. However, the Court later restored the case to its list of cases, and it currently remains pending.

Judgment

Before the Court, the applicant argued that the Azerbaijani authorities had violated his rights under Articles 8, 10, 11 and 18 ECHR, as well as under Article 1 of Protocol No. 1. Under Articles 10 and 11, the applicant complained that his disbarment had been actuated by the statements he had made concerning the ill-treatment suffered by A.H. Finding that the allegation only raised issues under Article 10 and not under Article 11, the Court ruled that the disbarment measure had been prescribed by law and had pursued the legitimate aim of protecting the reputation and rights of prison officers. The Court noted that lawyers played a central role in preserving the public’s faith in the judicial system, but that the applicant’s statements did not amount to an attempt to undermine the independence of the judiciary as they did not pertain to any pending proceedings, but instead concerned specific instances of alleged ill-treatment with respect to the applicant’s client, whose interests the applicant was supposed to protect. Accordingly, the domestic courts had had to strike a fair balance between the interests of the implicated prison guards in having their reputation protected, and the applicant’s interests in protecting his right to freedom of expression. However, the domestic courts had failed to consider a number of important elements in their assessment, including the fact that the allegations were a matter of public interest, the fact that the implicated prison guards had not pursued legal action against the applicant themselves, and that the statements could not a priori have been considered baseless since no investigation was conducted into the veracity of the claims. The Court also attached particular importance to the Azerbaijani government’s unilateral declaration before the Court in which it acknowledged that A.H. had had his Article 3 rights violated. For these reasons, the disbarment sanction had been disproportionate. The Court therefore found a violation of Article 10.

The applicant also alleged that his disbarment had been a violation of his right to respect for private life under Article 8, as it prevented the applicant from exercising his profession and not only affected his social and professional reputation, but also resulted in a significant loss of earnings. Largely following the same line of reasoning as it did under Article 10, the Court also found that the domestic courts had not diligently assessed the proportionality of the measure. Disbarment constitutes the most severe disciplinary sanction which may be imposed onto a lawyer; yet, the domestic courts did not specify why the harshest sanction had to be imposed. This contravened the Committee of Ministers’ Recommendation R (2000) 21 on the freedom of exercise of the profession of lawyers, which specifically dictates that the principle of proportionality must be respected in sanctioning lawyers. Finally, the Court took note of a pattern of arbitrary arrests, detentions and other restrictive measures adopted in respect of civil society activists, human rights defenders and NGOs in Azerbaijan. The Court accordingly found a violation of Article 8 as well. Having regard to these violations, the Court found it not necessary to issue a separate ruling on Article 18 in conjunction with Articles 8 and 10, or on Article 1 of Protocol No. 1.

Commentary

Judges Ktistakis and Pavli issued a Joint Partly Dissenting Opinion, in which they criticized the majority’s conclusion that the disbarment had pursued a legitimate aim under Articles 8 and 10, and the majority’s decision not to separately examine the complaint under Article 18. This blog post further explores the arguments raised in this opinion.

Deference in purpose review

In their dissent, Judges Ktistakis and Pavli argue that the disbarment did not pursue the legitimate aims of protecting the reputation of the implicated prison guards or prevention of disorder, because these allegations were based on the erroneous premise that the applicant had committed some grave breach of his professional ethics. Noting that ‘reporting on possible serious ill-treatment of prisoners is entitled to “added importance” under Article 10’ (para 3), that the applicant had had a duty to protect his client’s interests, that none of the prison guards themselves had ever pursued legal action against the applicant, and that the Azerbaijani government itself had acknowledged before the Court that A.H.’s rights under Article 3 had been violated, they find that the applicant’s statements were not at all unethical or reckless. In fact, they argue that the disbarment in reality had been imposed for ulterior motives. Indeed, the grossly disproportionate nature of the measure, coupled with the pattern of arbitrary arrests and suppressive measures against civil society activists raises questions for them about the true motives behind the disbarment measure. In light of the foregoing, they therefore disagree with the majority’s finding that it was ‘not necessary’ to review Article 18.

The dissent touches on a prevalent issue in the Court’s case law: when it comes to identifying the State’s aims behind rights restrictions and assessing their legitimacy, the Court remains highly deferential. In practice, this results in the Court operating on a presumption of the respondent State’s good faith: when a State argues that it pursued a certain aim in restricting a right, the Court assumes that the stated aim and the pursued aim are one and the same. In other words: if the State claims it pursued a certain aim, the Court believes the State and only requires a minimum of evidence in support of this claim. This degree of deference is usually relatively high; even in cases where the Court may have questions about the veracity of the aim, it will typically dispense with ruling on the issue and instead shift its attention to issues with the lack of proportionality of the measure rather than questioning the State’s intentions. The Court itself has already admitted to this in its case law (see here, para 297).

There are several reasons that may explain this deference. Most importantly, though, it is often infinitely more complicated to prove that a measure was inspired by an ulterior motive than it is to prove that said measure was disproportionate or impertinent. Indeed, particularly in the event that a violation consisted of multiple decisions – as it was, for instance, in this particular case – it is a nearly insurmountable task for courts to conclusively identify that the State was not truthful with respect to the aim it pursued and that ulterior motives were at stake (see here for more on the Court’s evidentiary regime under Article 18). Shifting the attention instead to the means behind the restriction often proves more feasible, as means constitute a more tangible object of review than motives. Moreover, means review is evidently less sensitive politically than purpose review: the finding that a State had good intentions but simply chose the wrong means in interfering with a certain right sends an entirely different signal than the finding that the State did not have good intentions and was instead mendacious as to its true considerations. In this particular case, it also does not help that one could make the argument that at least on a prima facie basis, it could have been possible that the State – at least partially – really did seek to protect the reputation of its prison guards. After all, these guards were explicitly named in the media reports, which means their reputation was in some way compromised – even if the State ultimately acknowledged before the Court that A.H.’s Article 3 rights were violated in the end (see para 27). The foregoing might help explain why the majority chose to shift its focus to the lack of proportionality of the measure rather than the aims behind it.

Legitimate aims and the ‘predominance test’

In practice, though, this deference results in a traditionally low number of violations found on the basis of issues with the aims behind rights restrictions, and much more emphasis on the ‘necessity in a democratic society’ stage in the Court’s review. This approach may be criticized from various angles (the discussion of which would exceed the scope of this blog post), but one particular way that it affects this case is that it necessarily complicates the Court’s review under Article 18 too. Article 18 authorizes the Court to examine whether the rights restriction was enacted in pursuit of an ulterior motive. Yet, the identification of this motive does not automatically result in the finding of a violation: the Court only reaches this conclusion when (a) the State only pursued the ulterior motive and hence did not pursue a legitimate aim, or (b) the State did pursue a legitimate aim in addition to the ulterior motive, but the ulterior motive was ‘predominant’ in the decision-making process.

So far, most Article 18 violations in recent years have concerned the former scenario (i.e. the State exclusively pursued an ulterior motive). This scenario is evidently the easiest for the Court to adjudicate as well (insofar as ulterior motives can ever be ‘easy’ to identify). Instances where the Court has to gauge which of the two aims was ‘predominant’ before finding an Article 18 violation are more scarce. Although the Court has found Article 18 violations after applying the ‘predominance test’ before (see recently here), the test itself remains not only controversial (both in legal scholarship and among some judges), but, what is worse, the methodology behind it also remains unclear. In Merabishvili v. Georgia, in which this predominance test was originated, the Grand Chamber only stated that it would ‘have regard to the nature and degree of reprehensibility of the alleged ulterior purpose, and bear in mind that the Convention was designed to maintain and promote the ideals and values of a democratic society governed by the rule of law’ (Merabishvili v. Georgia [GC], para 307). One cannot infer much from this statement alone in terms of how predominance must be ascertained in practice, and it has been argued before that the Court has interpreted the test in different manners (see here). Given the uncertainty around the manner in which predominance must be determined, it is not unlikely that the traditionally low level of scrutiny at the level of the legitimate aims test bleeds into the Court’s Article 18 review and hence results in fewer violations of that provision.

Returning to the case at hand, it is easy to see how the Court’s swift acceptance of the legitimate aims proffered by the respondent State may have played into the finding that it was not necessary to review Article 18. Evidently, other elements may be at play in addition to the previously mentioned grounds for deference and the uncertainty surrounding the predominance test. Whatever the predominant reason may be (pun intended), the outcome remains that this results in fewer thorough assessments of Article 18. Of  course, it is understandable that the inquiry into ulterior motives is a politically sensitive endeavor, as it entails the idea that the State acted in bad faith: it deliberately concealed its true motives by hiding behind the aims included in the Convention’s limitation clauses. In other words, the State misuses the Convention in an attempt to justify its actions which would presumably be unjustifiable should the ulterior motives have been pursued overtly. Even though it is easy to see why the Court would prefer to tread lightly here, Article 18 does play an important role in the Convention system. An Article 18 violation carries more significance than a ‘mere’ violation of a substantive rights provision: it implies the Court ringing a figurative alarm that the rule of law has come under serious pressure in the respondent State. It therefore constitutes a unique but particularly valuable provision in the Court’s rule of law protection arsenal. It should therefore not come as a surprise that violations have so far been found only in respect of countries such as Russia, Azerbaijan or Türkiye, countries which do not have the best rule of law track record recently. However, as pointed out by Judge Pavli earlier this year, the Court often eschews applying this provision. As stated, this may be understandable to a certain degree, but the Court must be wary not to let the presumption of good faith, which ought to be rebuttable under Article 18, turn into an ‘uncritical belief’ in the State’s good faith, as once forewarned by Judge Kūris (see his concurring opinion here). Otherwise the Court risks losing a valuable tool in its mission to uphold the rule of law in its Member States in a time where the rule of law appears to be under an unprecedented amount of pressure.

Conclusion

Scrutinizing the aims behind rights restrictions does have merit, no matter how politically sensitive this may be. While this blog post does not argue that the Court should shift its focus to purpose review in every case, the Court would be wise not to overlook the tools it has to engage in purpose review: the legitimate aims test and Article 18 ECHR. Especially in cases like this one where a documented pattern of targeted efforts to suppress political and critical dissent has previously been identified by the Court – and where violations of Article 18 have previously been found in similar cases against the same respondent State (see for instance here and here) – there is a clear added value to reviewing the aims behind the challenged measures. Finding that the State did not pursue a legitimate aim absolves the applicant from any blame on his part, as he was merely acting in his capacity as a lawyer. Moreover, beyond the individual level, ruling that the measure was instead inspired by ulterior motives sends a stronger message to the respondent State, i.e. Azerbaijan, and accordingly signals to the Committee of Ministers that more is required in terms of the implementation of this judgment than merely reinstating the applicant or paying him the sum designated under Article 41. Ulterior motives are therefore necessary to review – not just for the applicant’s sake alone, but for the sake of the rule of law as a whole.