Opinion; Subjects: AZERBAIJAN, ARBITRARY DETENTION; [WGAD: UNO-Arbeitsgruppe über willkürliche Inhaftierung, willkürliche Haft; Groupe de travail sur la détention arbitraire; Gruppo di lavoro sulla detenzione arbitraria]
Volltext (verifizierbarer Originaltext)
GE.25-01895 (E) 170225 170225
Human Rights Council
Working Group on Arbitrary Detention
Opinions adopted by the Working Group on Arbitrary
Detention at its 101st session, 11–15 November 2024
Opinion No. 46/2024 concerning Ruben Vardanyan (Azerbaijan)*
1.
The Working Group on Arbitrary Detention was established in resolution 1991/42 of
the Commission on Human Rights. In its resolution 1997/50, the Commission extended and
clarified the mandate of the Working Group. Pursuant to General Assembly resolution 60/251
and Human Rights Council decision 1/102, the Council assumed the mandate of the
Commission. The Council most recently extended the mandate of the Working Group for a
three-year period in its resolution 51/8.
2.
In accordance with its methods of work, 1 on 15 May 2024, the Working Group
transmitted to the Government of Azerbaijan a communication concerning Ruben
Vardanyan. The Government replied to the communication on 15 August 2024. The State is
a party to the International Covenant on Civil and Political Rights.
3.
The Working Group regards deprivation of liberty as arbitrary in the following cases:
(a)
When it is clearly impossible to invoke any legal basis justifying the
deprivation of liberty (as when a person is kept in detention after the completion of his or her
sentence or despite an amnesty law applicable to him or her) (category I);
(b)
When the deprivation of liberty results from the exercise of the rights or
freedoms guaranteed by articles 7, 13, 14, 18, 19, 20 and 21 of the Universal Declaration of
Human Rights and, insofar as States parties are concerned, by articles 12, 18, 19, 21, 22, 25,
26 and 27 of the Covenant (category II);
(c)
When the total or partial non-observance of the international norms relating to
the right to a fair trial, established in the Universal Declaration of Human Rights and in the
relevant international instruments accepted by the States concerned, is of such gravity as to
give the deprivation of liberty an arbitrary character (category III);
(d)
When asylum-seekers, immigrants or refugees are subjected to prolonged
administrative custody without the possibility of administrative or judicial review or remedy
(category IV);
(e)
When the deprivation of liberty constitutes a violation of international law on
the grounds of discrimination, based on birth, national, ethnic or social origin, language,
religion, economic condition, political or other opinion, gender, sexual orientation, disability
or any other status, that aims towards or can result in ignoring the equality of human beings
(category V).
* Mumba Malila did not participate in the discussion of the case.
1 A/HRC/36/38.
United Nations
A/HRC/WGAD/2024/46
General Assembly
Distr.: General
17 February 2025
Original: English
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1.
Submissions
(a)
Communication from the source
4.
Ruben Vardanyan is a national of Armenia, born on 25 May 1968.
(i)
Background
5.
According to the source, Mr. Vardanyan is a business leader, social entrepreneur,
philanthropist and human rights defender who has been an outspoken advocate for the rights
of the ethnic Armenian population living in Nagorno-Karabakh, including their right to
self-determination. For many years, he has been critical of actions of the authorities of
Azerbaijan in relation to that population. Between 4 November 2022 and 23 February 2023,
Mr. Vardanyan also served as the Minister of State (Prime Minister) in the Government of
Nagorno-Karabakh.
6.
Mr. Vardanyan was living in Stepanakert (Khankendi), capital of Nagorno-Karabakh,
where he relocated to in 2022, in order to manage his humanitarian projects. He was then
invited by the President of Nagorno-Karabakh to take a political role, which he agreed to do
and served as the Minister of State until February 2023. He was then removed from office as
a result of pressure from the authorities of Azerbaijan. After his dismissal, Mr. Vardanyan
focused
on
managing
social
projects
and
supporting
cultural
initiatives
in
Nagorno-Karabakh. Those included projects focused on safeguarding cultural heritage and
the Our Mountains Initiative, which helped individuals whose lives had been disrupted by
the conflict in Nagorno-Karabakh.
7.
The source adds that Nagorno-Karabakh has a long history of contested claims. The
latest escalation in Nagorno-Karabakh began on 19 September 2023. Nearly 120,000 ethnic
Armenians in Nagorno-Karabakh fled at that time to Armenia.
(ii)
Arrest and pretrial detention
8.
Mr. Vardanyan was arrested by officials of the State Border Service of Azerbaijan
during the latest escalation in Nagorno-Karabakh, on 27 September 2023, as he tried to cross
the border into Armenia. On the same day, the Sabail District Court in Baku remanded
Mr. Vardanyan and placed him in pretrial detention on charges under articles 214-1
(financing of terrorism), 279 (3) (participation in the creation and operation of armed groups
not sanctioned by law) and 318 (1) (illegal crossing of the State border) of the Criminal Code.
9.
According to the source, Mr. Vardanyan’s detention was part of a larger campaign
against the former leaders of Nagorno-Karabakh, given the fact that, in late September and
early October 2023, several other leaders of the Government of Nagorno-Karabakh were also
arrested. The Prosecutor General of Azerbaijan indicated that criminal investigations had
been opened against a total of 300 former officials from Nagorno-Karabakh.
10.
Mr. Vardanyan appealed the detention order of 27 September 2023, but his appeal
was rejected by the Baku Appeal Court on 9 October 2023. On 16 January 2024, the same
Court extended his detention for an additional four months. Mr. Vardanyan’s appeal of that
detention order was rejected in late January 2024. Mr. Vardanyan also filed motions to
dismiss the case on 30 October, 27 November and 14 December 2023, and 12 January 2024.
All of those motions were denied.
11.
Mr. Vardanyan remains deprived of liberty at the pretrial detention facility of the State
Security Service.
(iii)
Legal analysis
12.
The source submits that Mr. Vardanyan’s detention constitutes an arbitrary
deprivation of his liberty under categories II, III and V of the Working Group.
a.
Category II
13.
The source argues that Mr. Vardanyan’s detention is arbitrary because it resulted from
the exercise of his rights to freedom of opinion, expression and association.
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14.
It claims that Mr. Vardanyan is being detained in retaliation for his outspoken
advocacy for Nagorno-Karabakh and his criticism of the President of Azerbaijan and that this
violates article 19 (2) of the Covenant. It highlights that the Working Group has previously
noted “a pattern of unlawful deprivation of liberty” of “individuals expressing opinions not
in line with those of the ruling political establishment” in Azerbaijan.2
15.
The source argues that Mr. Vardanyan has long used his platform as a successful
businessman, entrepreneur and philanthropist to call for self-determination for the people of
Nagorno-Karabakh, speak out against the policies of Azerbaijan towards them, alleging that
these were contrary to international law, and promote accountability for these violations. He
has been the principal representative of Nagorno-Karabakh in relation to the outside world,
appearing on Western television programmes to articulate the claims for independence of
Armenians in Nagorno-Karabakh.3 In January 2023, after the start of the blockade of the
Lachin corridor by Azerbaijan, Mr. Vardanyan appeared on a television programme on the
British Broadcasting Corporation to discuss the situation and to advocate for the rights of the
ethnic Armenians of Nagorno-Karabakh.4 That same month, in an interview with France 24,
he called for European countries to consider imposing sanctions to pressure the authorities
of Azerbaijan into ending the blockade of the Lachin corridor.5 His posts on X, each of which
received tens of thousands of views, highlighted the same issues.
16.
The source recalls that the Foreign Minister of Azerbaijan has publicly responded to
Mr. Vardanyan’s calls for self-determination by saying that Mr. Vardanyan’s activity is
criminally adventurous and should be ended immediately.
17.
The source recalls the fact that, while all the former leaders of Nagorno-Karabakh,
including Mr. Vardanyan, were originally charged in the same criminal case,
Mr. Vardanyan’s case has been separated out into a stand-alone case (he was informed of this
on 13 November 2023), even though they are charged with very similar crimes.
18.
As part of the investigation in Mr. Vardanyan’s case, the prosecution has ordered a
linguistic analysis of at least three of his statements and writings, all of which are focused on
Nagorno-Karabakh: (a) a video he uploaded to YouTube on 20 December 2022; (b) a video
he uploaded to his Telegram channel on 16 December 2022; and (c) a 42-page statement
entitled “15 principles of Armenia’s future”, which he published in 2023. According to the
source, that demonstrates unequivocally that Mr. Vardanyan is being targeted for speaking
out on behalf of Nagorno-Karabakh.
19.
The source argues that the charges against Mr. Vardanyan for illegally crossing the
border between Nagorno-Karabakh and Armenia appear to be politically motivated and have
no basis in law for several reasons: prior to the blockade, there were no border controls
between Nagorno-Karabakh and Armenia; Nagorno-Karabakh residents held Armenian
passports, not Azerbaijani ones, and moved freely between the regions; the charges violate
the 2020 ceasefire agreement, which allowed unobstructed movement, and the principle of
nullum crimen sine lege, as there are no internationally recognized boundaries. The source
asserts that those factors suggest that the illegal border crossing charge lacks a legal
foundation.
20.
The source recalls that, in a previous opinion, the Working Group found a violation
of the rights to freedom of expression and association (articles 19 (1) and 22 of the Covenant)
because the purpose of the criminal charges brought against the activists was to intimidate
them because of their political views regarding independence and to prevent them from
pursuing that cause in the political sphere.6 It argues that, similarly, the criminal charges
against Mr. Vardanyan are intended to silence him and to prevent him from pursuing his
cause in the political sphere. It asserts that the Working Group has repeatedly found
violations of the rights to freedom of opinion, expression and association in situations in
2 A/HRC/36/37/Add.1, para. 82.
3 See, for example, https://www.reuters.com/world/karabakhs-vardanyan-close-100-killed-hundreds-
injured-by-azerbaijans-war-2023-09-20.
4 See https://jam-news.net/bbc-interview-with-ruben-vardanyan.
5 See https://mediamax.am/en/news/karabakh/50049.
6 Opinion No. 6/2019.
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which Governments have detained members or leaders of the political opposition due to their
political activities.7
21.
The source asserts that Mr. Vardanyan originally moved to Nagorno-Karabakh for
humanitarian reasons, hoping to help its civilian population. However, after the President
personally invited him to take a political role, he agreed and served as the Minister of State
of Nagorno-Karabakh for several months. The Government of Azerbaijan opposed his
appointment – the authorities of Azerbaijan publicly declined to engage on issues of mutual
concern with Mr. Vardanyan. Moreover, Mr. Vardanyan was removed from his post after the
authorities of Azerbaijan demanded his dismissal. The connection between Mr. Vardanyan’s
detention and his political service is further evident from the fact that he is detained along
with five other former civilian leaders of Nagorno-Karabakh – who were all arrested within
a week of each other (between 27 September and 4 October 2023) – and from the statement
of the Prosecutor General that criminal investigations have been opened against a total of 300
former officials of Nagorno-Karabakh.
b.
Category III
22.
The source asserts that the authorities of Azerbaijan have violated Mr. Vardanyan’s
right to the presumption of bail and his right to the presumption of innocence.
23.
In relation to the right to the presumption of bail, the source recalls that article 9 (3)
of the Covenant contains a presumption against pretrial detention. The Working Group has
affirmed the explanation of the Human Rights Committee to the effect that detention pending
trial must be based on an individualized determination that it is reasonable and necessary
taking into account all the circumstances, for such purposes as to prevent flight, interference
with evidence or the recurrence of crime.8 Pretrial detention cannot be ordered based on the
potential sentence for the crime charged, rather than on a determination of necessity. 9
Moreover, in imposing pretrial detention, courts must examine whether alternatives to
pretrial detention, such as bail, electronic bracelets or other conditions, would render
detention unnecessary in the particular case.10
24.
The source submits that the two orders of the Sabail District Court in Baku ordering
Mr. Vardanyan to be held in pretrial detention are not valid under international law. The first
order, issued on 27 September 2023, stated that pretrial detention was appropriate because:
(a) Mr. Vardanyan was likely to hide from the authorities; (b) he was likely to obstruct or
interfere with the investigation; and (c) the nature, severity and circumstances of his alleged
crimes warranted detention. The prosecutor had also argued (and it appears the Court may
have agreed) that Mr. Vardanyan was likely to commit additional crimes and that he posed a
danger to society. However, the source claims that the Court provided no actual evidence for
those findings and its order therefore does not constitute a reasoned, individualized judgment
on the application of pretrial detention.
25.
The source specifies that, regarding the claims that he was likely to obstruct or
interfere with the investigation, that he was likely to commit additional crimes and that he
posed a danger to society, the Sabail District Court provided no evidence to support those
claims. Without having analysed specific factual evidence related to Mr. Vardanyan, the
Court cannot be said to have made an individualized determination of those factors. It notes
that the Human Rights Committee has stated that vague and expansive standards, such as
public security, should not be used to impose pretrial detention,11 and the Court’s reliance on
the claim that he was a danger to society violated that injunction.
26.
Regarding the risk that Mr. Vardanyan would flee or hide, the Sabail District Court
noted that, between 25 and 27 September 2023 (the time between his indictment and arrest),
Mr. Vardanyan’s whereabouts were unknown and he was considered to be hiding from
7 Decisions No. 5/1994 and No. 30/1996.
8 Human Rights committee, general comment No. 35 (2014), para. 38. See, for example, opinion
No. 62/2017, para. 45.
9 Human Rights committee, general comment No. 35 (2014), para. 38.
10 Ibid.
11 Human Rights Committee, general comment No. 35 (2014), para. 38.
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investigators. The source argues that the fact that Azerbaijani authorities were not aware of
Mr. Vardanyan’s precise location hardly proves that he was hiding from investigators –
especially given that, in the week prior, almost 120,000 people, including Mr. Vardanyan,
had fled Nagorno-Karabakh. The Court argued that Mr. Vardanyan did not have а permanent
place of residence in Azerbaijan, but this ignores the fact that he had a home in Stepanakert
and that he had been living there for a year until he had been forcibly displaced by the military
offensive. Between September 2022 and September 2023, there were consistent public
reports that Mr. Vardanyan was in Stepanakert. The Court also asserted that he had repeatedly
crossed the border illegally, but it did not cite a single specific instance of this beyond the
one alleged incident for which he had been criminally charged. The Court also cited
Mr. Vardanyan’s wealth, but wealth alone does not make a person a flight risk.
27.
Regarding the Court’s assertion that the nature, severity and circumstances of
Mr. Vardanyan’s alleged crimes warranted detention, the source recalls that the Human
Rights Committee has made it clear that the severity of the charges and the potential sentence
the accused is facing cannot serve as the sole basis for imposing pretrial detention.12
28.
The source recalls that, in its detention order of 27 September 2023, the Sabail District
Court did not consider whether there were alternatives to detention, such as mandating that
Mr. Vardanyan wore an ankle monitor, which would render pretrial detention unnecessary.
The Court’s order acknowledged that Mr. Vardanyan’s attorney had proposed specific
alternatives to detention, but it failed to consider them or explain why they would not suffice.
29.
The second detention order was issued on 16 January 2024, when the Sabail District
Court extended Mr. Vardanyan’s pretrial detention by four months. On that occasion, the
Court found that detention was necessary due to: (a) the nature and danger of the alleged
crimes; (b) the need to perform investigative and other procedural actions; and (c) the volume
of materials obtained in the course of the pretrial proceedings. The prosecutor had also argued
(and it appears the Court may have agreed) that detention was warranted due to the
complexity of the case and the likelihood that Mr. Vardanyan would obstruct the
investigation or conceal or falsify materials.
30.
Regarding the need to perform investigative and other procedural actions, the volume
of materials obtained and the complexity of the case, the source submits that none of those
were valid reasons to impose pretrial detention under international law. As regards the claim
that Vardanyan would obstruct the investigation or conceal or falsify materials, the source
points out that the Court’s order contained no evidence to support such a claim. Regarding
the nature and danger of the alleged crimes, the source claims that the severity of the charges
and the potential sentence an accused is facing cannot serve as the sole basis for imposing
pretrial detention. Moreover, the Court once again failed to consider any alternatives to
pretrial detention.
31.
The source submits that the authorities have violated Mr. Vardanyan’s right to the
presumption of innocence under article 14 (2) of the Covenant. Interpreting that right, the
Human Rights Committee has explained that all public officials must refrain from prejudging
the outcome of a trial, for example, by abstaining from making public statements affirming
the guilt of the accused and that media should avoid news coverage undermining the
presumption of innocence.13
32.
Multiple government officials and agencies have made statements implying that
Mr. Vardanyan is guilty, thereby violating his right to the presumption of innocence. The
week before Mr. Vardanyan was arrested, the authorities referred to the leadership of
Nagorno-Karabakh as, inter alia, a “criminal regime”. On 28 September 2023, the day after
Mr. Vardanyan’s arrest, the Press Service of the State Security Service announced that he
had been detained for the “illegal acts committed by him”,14 which goes beyond merely
reporting that it was alleged that he had committed specific crimes to conclude that he was
actually guilty of having committed those crimes.
12 Ibid.
13 Human Rights Committee, general comment No. 32 (2007), para. 30.
14 See https://www.dtx.gov.az/en/news/1788.html.
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33.
In January 2024, when responding to a question about Mr. Vardanyan and other
detained leaders of Nagorno-Karabakh, the President referred to him as a criminal who had
been arrested and detained and would be brought to justice soon.15 The source further notes
that the President and others in positions of authority had repeatedly called Mr. Vardanyan a
“criminal”, even before he was criminally charged.16 In January 2024, the Prosecutor General
of Azerbaijan commented that Mr. Vardanyan and other detainees “were engaged in
separatism, operating illegally on the territory of Azerbaijan”.17
34.
Major media sources controlled by the authorities have also commented on
Mr. Vardanyan’s guilt. The day after Mr. Vardanyan was arrested, Aze.Media reported that
“Vardanyan participated in financing terrorism, allocating funds for the organization of
terrorist activities of the mentioned illegal armed formations. For the committed illegal
actions, Ruben Vardanyan was detained”.18 That same day, the Baku Tribune reported that
“Ruben Vardanyan was detained on September 27, 2023, for the illegal acts he committed”.19
Reporting on Mr. Vardanyan’s arrest, Minval Politika called the Government of
Nagorno-Karabakh an “illegal junta” and stated that Mr. Vardanyan was far from being an
ordinary militant and his responsibility was different.20
35.
The source argues that the authorities violated Mr. Vardanyan’s right to be informed
of the nature and cause of the charges against him and his right to have adequate time and
facilities for the preparation of his defence in violation of article 14 (3) (a) and (b) of the
Covenant.
36.
The source claims that, neither Mr. Vardanyan nor his counsel has been told anything
about the charges against him, other than that he is being investigated under articles 214-1,
279 (3) and 318 (1) of the Criminal Code. They have not been informed of the specific factual
basis for each of the charges, nor have they been given evidence to support the charges.
Without such information, they cannot prepare their defence.
37.
The source submits that the authorities violated Mr. Vardanyan’s right to be tried by
an independent and impartial tribunal under article 14 (1) of the Covenant.
38.
The source submits that the judiciary lacks independence and is subordinate to the
executive branch. In Mr. Vardanyan’s case, the Judge of the Sabail District Court
demonstrates a lack of impartiality and independence through: prolonged investigation since
September 2023 with no substantive hearings, only extensions of the period of detention;
summary dismissal of bail requests without detailed, individualized determinations; and a
failure to provide evidence supporting the accusations against Mr. Vardanyan.
c.
Category V
39.
The source submits that Mr. Vardanyan’s detention is a direct result of his Armenian
ethnicity and is therefore discriminatory. His detention is part of a campaign to remove the
ethnic Armenian presence and influence in Nagorno-Karabakh. The source quotes various
official sources stating that ethnic Armenians do not have a historical presence in
Nagorno-Karabakh.21 The source recalls the order of the International Court of Justice of
7 December 2021 requiring Azerbaijan “to prevent … acts of vandalism and desecration
15 See
https://azertag.az/en/xeber/president_of_azerbaijan_ilham_aliyev_was_interviewed_by_local_tv_cha
nnels_video-2878477.
16 See https://www.azatutyun.am/a/32279597.html (Mr. Vardanyan was called a “criminal oligarch”)
and https://web.archive.org/web/20221222104107/https:/mfa.gov.az/en/news/no58122 (an assistant of
the President called Mr. Vardanyan “a criminal businessman”).
17 See https://en.azvision.az/news/176133/azerbaijan-continues-investigation%C2%A0against-
armenian-separatists-in-line-with-int%E2%80%99l-conventions-prosecutor-general.html.
18 See https://aze.media/state-security-service-ruben-vardanyan-charged-with-financing-terrorism.
19 See https://bakutribune.com/en/news/1219/azerbaijan%E2%80%99s-state-security-service-armenian-
citizen-ruben-vardanyan-taken-into-custody-as-suspect.
20 See https://minval.az/news/124347004 (in Russian).
21 See https://jam-news.net/aliyev-on-armenian-azerbaijan-border-nagorno-karabakh-status-we-are-in-
our-territory; and https://president.az/en/pages/view/azerbaijan/karabakh.
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affecting Armenian cultural heritage”.22 The Minister of Culture of Azerbaijan created a
working group in early 2022 to eliminate the so-called traces written by Armenians on
Albanian religious temples.23 Mr. Vardanyan is detained alongside several other former
leaders of Nagorno-Karabakh. The Prosecutor General has announced that criminal
investigations have been opened against 300 former Nagorno-Karabakh officials.
40.
According to the source, Mr. Vardanyan’s detention is discriminatory based on his
political views favouring the self-governance of Nagorno-Karabakh. That is said to align
with the Working Group’s previous finding that detaining activists for their opinions on
self-determination constitutes arbitrary detention under category V. The Working Group has
also determined that imprisoning members of political groups to silence their advocacy of
self-determination is arbitrary.24
41.
The source claims that Mr. Vardanyan’s detention is intended to punish members of
the leadership of Nagorno-Karabakh as a means of silencing their calls for self-determination.
Mr. Vardanyan’s detention is the result of an effort against the leaders of the
Nagorno-Karabakh independence movement, which enjoys the public political backing of
high-ranking officials. His detention is discriminatory as it targets his work and efforts as a
human rights defender, which qualifies his detention under category V.25
(b)
Response from the Government
42.
On 15 May 2024, the Working Group transmitted the allegations from the source to
the Government of Azerbaijan under its regular communications procedure, requesting a
reply by 15 July 2024. On 12 July 2024, the Government of Azerbaijan requested an
extension, which the Working Group granted. The Working Group received the
Government’s response on 15 August 2024, within the established deadline.
43.
The Government states that a criminal association (organization) was created in the
formerly occupied territories of Azerbaijan by the Armenian armed forces, as well as by
persons leading military formations in Armenia for the purpose of committing serious crimes
against Azerbaijan and its citizens.
44.
The Government submits that persons belonging to the criminal association have
committed the acts of intentionally killing people and destroying a large amount of property
with various types of rockets in an indiscriminate manner. The members of the Armenian
armed group, which is not provided for by the legislation of Azerbaijan, operating in the area
in which the Russian peacekeepers were temporarily stationed in the Garabagh economic
region of Azerbaijan, conducted mass mining of territories (mining operations continued
until September 2023) in order to carry out actions (terrorist acts) that threatened to kill
people, harm their health, cause significant property damage and other socially dangerous
consequences with the intention of national enmity and hostility.
45.
The Government notes that criminal proceedings have been initiated against
individuals involved in those attacks and mining operations. Some perpetrators have been
convicted, while others are under investigation or subject to international search warrants.
The criminal cases were initiated on the basis of specific facts and are not political in nature.
Along with other persons who have been prosecuted in ongoing criminal cases,
Mr. Vardanyan, detained on 27 September 2023, previously a citizen of the Russian
Federation (until December 2022) and currently a citizen of Armenia, is accused of
committing criminal acts under articles 214-1, 279 (3) and 318 (1) of the Criminal Code and
was declared wanted as a suspect for the aforementioned crimes.
46.
The Government states that Mr. Vardanyan is suspected of: illegally crossing the
border of Azerbaijan to commit terrorist acts; entering areas under the control of Russian
22 Application of the International Convention on the Elimination of All Forms of Racial Discrimination
(Armenia v. Azerbaijan), Provisional Measures, Order of 7 December 2021, I.C.J. Reports 2021,
p. 361, at para. 98 (c).
23 See https://report.az/medeniyyet-siyaseti/alban-dini-mebedlerinin-berpasi-ucun-isci-qrup-yaradilib
(in Azeri).
24 Opinion No. 6/2019.
25 Opinion No. 45/2016, paras. 44 and 45.
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peacekeepers to form and organize illegal armed groups; supplying these groups with
weapons and equipment, leading to deadly raids; financing terrorism by providing funds and
property for terrorist activities; supporting acts aimed at disrupting public safety; causing
panic and inflicting harm through explosions, arson or other terrorist acts; and attempting to
influence the decisions of Governments and international organizations through such actions.
47.
The Government notes that, until 27 September 2023, Mr. Vardanyan was hiding from
investigators in the territories of Azerbaijan that, at that time, were not under the full
sovereign control of Azerbaijan. He was detained by the State Border Service of Azerbaijan
on 27 September 2023 while trying to leave the country secretly through the Lachin corridor
in a vehicle driven by a Major General of the Armed Forces of Armenia, who was also the
first deputy commander of the illegal armed group called the “Defence Army of the
Nagorno-Karabakh Republic” in 2020–2022, and is suspected of numerous terrorist acts,
armed attacks and other criminal acts. Mr. Vardanyan was handed over to the main
investigation department of the State Security Service and, on the same day, he was informed
that he was being charged under articles 214-1, 279 (3) and 318 (1) of the Criminal Code.
48.
The Government claims that Mr. Vardanyan was, upon his request, appointed an
Russian-speaking interpreter; he was immediately provided with a defence lawyer; a lawyer
chosen by his family was allowed to participate from 29 September 2023; he had unlimited
confidential communication with his lawyer; adequate time and opportunity were given to
him to prepare his defence; and he appealed the pretrial detention decision of 27 September
2023 through his lawyer. Those measures were taken to ensure Mr. Vardanyan’s defence
rights during the investigation.
49.
According to the Government, Mr. Vardanyan was informed clearly of his rights
provided for in article 91 of the Code of Criminal Procedure, namely to know the nature of
the charges brought against him. Mr. Vardanyan’s rights, provided for in article 6 (3) of the
Convention for the Protection of Human Rights and Fundamental Freedoms (European
Convention on Human Rights), were clearly explained to him in Russian, as requested, in the
presence of an interpreter and a lawyer, and the relevant protocol (official record) was drawn
up.
50.
The charges against Mr. Vardanyan were communicated to him with an interpreter
and lawyer present. Mr. Vardanyan’s understanding of the charges is evident from the
petitions that he and his lawyer submitted during the investigation. He was thoroughly
interrogated about the facts surrounding the criminal acts, associated acts and evidence in the
presence of an interpreter and a lawyer.
51.
Mr. Vardanyan was promptly brought before the Sabail District Court, which decided
to order pretrial detention as a preventive measure on 27 September 2023. Prior to that court
appearance, the preliminary evidence supporting the accusations was presented to
Mr. Vardanyan with a lawyer and interpreter present, and a protocol (official record) was
prepared. The preliminary evidence was also presented and examined during the pretrial
detention hearing.
52.
The Government asserts that Mr. Vardanyan’s right to the presumption of innocence
was not violated by the prosecuting authorities and other State authorities. An informative
statement was made to the press about the detention of the accused person by the
investigating body.
53.
Mr. Vardanyan was detained on the basis of reasonable suspicion of having committed
crimes, promptly interrogated and arrested in accordance with article 5 (1) (c) of the
European Convention on Human Rights. “Reasonable suspicion” is defined as information
that would lead an objective observer to believe that a crime has been committed, assessed
on the basis of the circumstances of the case. Terrorist crimes, being a special category due
to the risk to human life, allow authorities to consider all information, including confidential
sources, when determining reasonable suspicion.26
26 European Court of Human Rights, Fox, Campbell and Hartley v. the United Kingdom, Applications
Nos. 12244/86, 12245/86, 122383/86, Judgment, 30 August 1990.
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54.
According to the Code of Criminal Procedure, alternative measures, such as house
arrest and bail, can be requested by the defence instead of detention. In addition, bail as a
preventive measure can be chosen for a person who does not represent a great public danger,
as well as a person whose public danger is only related to material damage or who is accused
of committing serious crimes due to carelessness. In the present case, since the crimes with
which Mr. Vardanyan has been charged belong to the category of particularly serious crimes,
it is not envisaged to release him from prison by posting bail. The preventive measure of
house arrest can be chosen for persons who have a permanent residence in the territory of
Azerbaijan. Mr. Vardanyan has never had a permanent address in Azerbaijan; he came to the
country later in life, living in different temporary addresses in Khankendi, Kalbajar Region
and other areas during his stay. The Government notes that the domestic courts did not
receive a motion by Mr. Vardanyan himself or his defence counsel to choose house arrest as
a preventive measure, and no justification was presented in this regard. In the decisions of
the respective courts, detailed justifications were given regarding the necessity of issuing an
arrest warrant against Mr. Vardanyan.
55.
The Sabail District Court justified Mr. Vardanyan’s pretrial detention on the basis of
his repeatedly crossing the State border illegally, the possibility of doing so again, his
financial means, his influence on other participants in the criminal process, including the
witnesses to be interrogated in the case, as well as the reasonable probability that he would
try to leave the country illegally, the fact that he is accused of committing especially serious
crimes, the danger that he represents to society, the nature of the crime and circumstances of
its commission, the risk of interference in the preliminary investigation and the possibility of
hiding from the investigation. The court emphasized that pretrial detention was warranted
when the interests of society outweighed the right to individual freedom. Mr. Vardanyan was
deemed a threat to society, which was a key reason for his detention, wanted status and
extended custody.
56.
The investigation into Mr. Vardanyan’s suspected activities in relation to the
financing of terrorism in Azerbaijan, as defined in article 214-1 of the Criminal Code,
involves multiple jurisdictions due to the complex nature of the financial transfers and
destinations. That suggests an extensive network of connections and potential accomplices.
Based on the evidence gathered, requests for legal assistance were sent to several countries.
The extension of Mr. Vardanyan’s detention was deemed necessary to prevent potential
tampering with evidence and to ensure thorough collection of documents and crime traces.
57.
On 16 January 2024, the court of first instance extended Mr. Vardanyan’s detention.
That decision was based on ongoing investigative actions, pending court materials and expert
opinions, the impending end of the current period of detention (19 January 2024), the severity
of the alleged crime, the volume of case materials and the extension of the preliminary
investigation until 28 June 2024. The court deemed those factors sufficient to justify
prolonging the accused’s detention.
58.
The Government notes that the reasonableness of the arrest and the existence of
“reasonable suspicion” were evaluated by the courts on an individual basis by examining the
materials of the criminal case before making a decision. In the decision of the Baku Appeal
Court dated 24 January 2024, on the appeal filed by Mr. Vardanyan’s defence counsel, it was
noted that ammunition, armoured helmets and other military items had been discovered in
Mr. Vardanyan’s office located in Khankendi and that he had communicated with a company
through his assistant about the construction of a factory that would produce an anti-aircraft
missile complex for use by illegal armed groups that operated in the formerly occupied
territories of Azerbaijan and that he was negotiating the provision of uncrewed aerial vehicles
for use by Armenian armed groups.
59.
The Criminal Board of the Baku Appeal Court also indicated, in its decision dated
23 May 2024, that legal arrest or detention to prevent criminal activities was not a breach of
any right to personal freedom when sufficient grounds existed.
60.
According to the Government, the Court’s decision to extend detention was based on,
not formal considerations, but the case’s exceptional complexity. That complexity stems
from the need to: identify all the parties involved, strengthen evidence, obtain expert opinions
and conduct related investigations, process the requests for international legal assistance,
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interrogate the accused regarding new evidence and perform additional investigations as
needed.
61.
State power in Azerbaijan is divided into independent legislative, executive and
judicial branches. Judges operate independently and impartially. The Government asserts that
the evidence collected, including witness statements, documents, expert opinions and
material evidence, raised reasonable suspicions about Mr. Vardanyan’s involvement in the
criminal acts. Consequently, requests by Mr. Vardanyan and his lawyer to terminate the case
were rejected during the investigation.
62.
The Government notes that, despite Mr. Vardanyan’s public image as a successful
businessman, philanthropist and advocate for ethnic Armenian rights, he has been implicated
in major money-laundering scandals and faced criminal charges in multiple jurisdictions.
Evidence suggests that he was involved in financing terrorism, organizing illegal armed
groups, and supplying weapons and equipment to these groups. Those illegal activities
resulted in raids, casualties and other serious consequences. Substantial material evidence
and documents supporting those allegations were obtained during investigations and will be
the subject of a court review upon the conclusion of those investigations.
63.
Protection of the State border between Azerbaijan and Armenia is carried out by the
State Border Service of Azerbaijan, in accordance with the general legal rule arising from the
sovereign rights of States. Protection of the State border of Azerbaijan by Russian troops or
other subjects, and the right to create conditions to exclude citizens of other countries from
official border registration on the territory of Azerbaijan by various methods and on a
permanent basis, are not provided for in the joint statement signed by the Presidents of
Azerbaijan and the Russian Federation and the Prime Minister of Armenia on 10 November
2020.
64.
Azerbaijan has created conditions for the unimpeded movement of the people living
in Garabagh from Azerbaijan to Armenia and in the opposite direction, based on the norms
of domestic and international legislation. Since the State borders of Azerbaijan are defined
by the norms of international law and are internationally recognized borders,
Mr. Vardanyan’s illegal crossing of the State border of Azerbaijan outside of official
checkpoints is one of the criminal acts that he is currently charged with.
65.
The Government recalls that, according to article 19 of the Covenant, the exercise of
the right to freedom of expression carries with it special duties and responsibilities.
Therefore, it is subject to certain restrictions, but these shall only be such as are provided by
law and are necessary: for respect of the rights and reputations of others; and for the
protection of national security or of public order, or of public health or morals.
66.
According to article 47 of the Constitution of Azerbaijan: “Everyone has the right to
freedom of thought and speech. No one shall be forced to repudiate his/her thoughts and
beliefs. Agitation and propaganda inciting racial, national, religious, social discord and
animosity or relying on any other criteria is inadmissible.”
67.
The Government asserts that the involvement of Mr. Vardanyan in criminal
proceedings did not happen due to any of his thoughts or beliefs. He has not been charged or
prosecuted for his national or ethnic affiliation, political views, comments about Garabagh
or calls that he made.
68.
The Government affirms that, when Mr. Vardanyan was identified as a suspect in the
investigation, he did not have any political status or position, he did not represent any State
or so-called institution at the political level. His arrest was not aimed at preventing any of his
legal activities and he was not discriminated against on any basis. The crimes with which he
is charged have nothing to do with freedom of thought and speech, as stipulated in article 19
of the Covenant.
69.
The Government submits that Mr. Vardanyan’s right to the presumption of innocence
was not violated by the prosecuting authorities and other State authorities. An informative
statement was made to the press about the detention of the accused by the investigating body.
In the statement made on 28 September 2023 by the Press Service of the State Security
Service about the detention of Mr. Vardanyan, special attention was paid to emphasizing the
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words “establishment of reasonable suspicion” in relation to the acts that he is suspected of
having committed and “according to the charges announced against him”.
70.
According to national legislation on media, the media is free in Azerbaijan and State
censorship in the field of media, as well as the creation and financing of state bodies
(institutions) or positions for this purpose, are prohibited. The information reported by the
media sources cited in the communication of the Working Group concerned the specific
charges brought against Mr. Vardanyan and the preventive measure (pretrial detention) that
was imposed on him. Dissemination of that type of information by news websites in a manner
not coordinated with the press services of State bodies cannot be viewed as a violation of the
right to the presumption of innocence.
71.
The Government submits that Mr. Vardanyan’s regular meetings with the
representatives of the International Committee of the Red Cross, as well as his meetings with
the Commissioner for Human Rights (Ombudsman) of Azerbaijan, and his constant
communication with his family members are additional guarantees of the unquestionable
protection of all procedural rights arising from his imprisonment.
72.
According to the Government, Mr. Vardanyan has been received by the Ombudsman
since the first day of his detention in order to ensure his rights, address issues related to his
treatment and interview him confidentially. The Ombudsman has visited Mr. Vardanyan
regularly since his detention began to ensure his rights and address issues related to his
treatment. The Ombudsman’s National Preventive Group inspected his cell, investigated his
conditions of detention and provided legislative information in Armenian, Russian and
English. Issues related to maintaining phone contact with his family members, meeting with
his lawyer, treatment by staff, and access to and use of medical services fell within the
mandate of the national preventive mechanism. Mr. Vardanyan was voluntarily medically
examined and his health condition was assessed as satisfactory. Mr. Vardanyan has regular
access to phone calls, parcels, a library and information.
(c)
Further comments from the source
73.
The source responded to the Government’s comments by arguing that some points
had not been addressed, providing additional context and reiterating the claims of arbitrary
detention under categories II, III and V.
74.
The source challenges the Government’s characterization of events as “local
anti-terrorist measures”, asserting that international bodies have recognized such actions as
ethnic cleansing.
75.
The source contends that the Government’s response includes irrelevant information
not raised in the original petition (that an interpreter was provided to Mr. Vardanyan, that he
was also provided with a lawyer upon his arrest etc.). It requests that such information either
be excluded from the present opinion or clearly labelled as unrelated to the initial petition to
avoid misinterpretation.
76.
According to the source, the Government claims that Mr. Vardanyan’s detention is
supervised by the Ombudsman and that he has had visits from human rights bodies, implying
that his rights are respected. However, the response ignores a recent urgent appeal filed by
Mr. Vardanyan’s council to the Special Rapporteur on torture and other cruel, inhuman or
degrading treatment or punishment alleging numerous acts of torture against him.
Furthermore, the institution of the Ombudsman is not fully compliant with the principles
relating to the status of national institutions for the promotion and protection of human rights
(the Paris Principles). The Government provided no specific evidence of Mr. Vardanyan’s
meetings with family or counsel. The response of the Government fails to address
Mr. Vardanyan’s alleged 15-day incommunicado detention from 5 to 20 April 2024.
77.
The source argues that the Government alleges that Mr. Vardanyan is a criminal but
provides no evidence. Mr. Vardanyan has not been charged, tried or convicted of any crime
outside of Azerbaijan. In addition, the Government claims the right to protect its borders by
charging Mr. Vardanyan under article 318 (1) (illegal border crossing). However, the source
asserts that that law is invalid under international law and notes that the Committee on the
Protection of the Rights of All Migrant Workers and Members of Their Families has
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recommended that Azerbaijan repeal article 318, stating that irregular entry or exit should be
an administrative offence at most, not a criminal one.27
78.
The source argues that Mr. Vardanyan is being detained for his advocacy in relation
to the issue of Nagorno-Karabakh and his criticism of the President of Azerbaijan, despite
the Government’s claims. The charges against Mr. Vardanyan are pretextual and are aimed
at silencing his outspoken views. The Government’s response cites article 47 of the
Constitution of Azerbaijan, which exempts certain forms of propaganda from free speech
protections. According to the source, that article is overly broad and may allow restrictions
on freedom of expression that violate international law.28
79.
The Government’s claim that Mr. Vardanyan did not request house arrest is refuted
on two grounds: first, Mr. Vardanyan’s counsel did ask for alternatives to detention, as
acknowledged in the detention order of 27 September 2023; and, second, it is irrelevant
whether a defendant requests alternatives. The Human Rights Committee states that courts
must examine alternatives to pretrial detention, such as bail or electronic monitoring,
regardless of the defendant’s request.29
80.
Regarding Mr. Vardanyan’s presumption of innocence the source states that the
Government only addressed one statement – namely, that of the Press Service of the State
Security Service dated 28 September 2023, which contains both qualified and unqualified
language implying guilt. The source claims that the Government, in its response, misquoted
the press release, adding qualifying language that was not present in the original. Lastly, the
source argues that the Government asserts judicial independence but provides no credible
sources to support this claim.
2.
Discussion
81.
The Working Group thanks the source and the Government for their submissions. In
determining whether Mr. Vardanyan’s detention is arbitrary, the Working Group has regard
to the principles established in its jurisprudence to deal with evidentiary issues. If the source
has established a prima facie case for breach of international requirements constituting
arbitrary detention, the burden of proof should be understood to rest upon the Government if
it wishes to refute the allegations.30
82.
At the outset, the Working Group notes that many arguments in the submissions
concern the backdrop of the armed conflict that has embroiled Azerbaijan over recent
decades, particularly in Nagorno Karabakh, with the involvement of Armenia and armed
groups reportedly supported by Armenia. The Working Group recalls that its mandate is
focused on arbitrary detention and so will only address matters relating to the broader context
insofar as they are relevant to the allegation that Mr. Vardanyan has been arbitrarily deprived
of liberty.
(a)
Category II
83.
According to the source, Mr. Vardanyan’s detention is arbitrary because it resulted
from the exercise of his rights to freedom of expression, opinion and association linked to his
outspoken advocacy for Nagorno-Karabakh. The Government argues that his detention is
instead based on his suspected responsibility for serious criminal actions, with which he is
charged.
84.
The Working Group recalls that that freedom of opinion and freedom of expression
are protected under article 19 of the Covenant. Limitations on the right to freedom of
expression are permissible under article 19 (3) of the Covenant, including for reasons
relating, in particular, to national security, public safety and public order, but it is
incompatible with that provision to invoke such laws to suppress or to withhold from the
27 CMW/C/AZE/CO/3, para. 30 (b).
28 Opinion No. 1/1998, para. 13; and opinion No. 25/2012, para. 55.
29 Human Rights Committee, general comment No. 35 (2014), para. 38.
30 A/HRC/19/57, para. 68.
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public information of legitimate public interest that does not harm national security or to
prosecute persons for having disseminated such information.31
85.
The Working Group has considered the conflicting arguments of the source and the
Government in relation to the reason for Mr. Vardanyan’s arrest. It notes that Mr. Vardanyan
was reportedly arrested while trying clandestinely to leave the territory of Azerbaijan in a
vehicle with a Major General of the Armed Forces of Armenia and the first deputy
commander of the “Defence Army of the Nagorno-Karabakh Republic”, which, according to
the Government, is suspected of numerous terrorist acts, armed attacks and other criminal
acts. The source does not dispute that he was caught with the aforementioned Major General,
while seeking to leave Azerbaijan on 27 September 2023. The Working Group notes that a
search of Mr. Vardanyan’s office revealed armoured helmets and other military equipment,
as well as indications that he was communicating with a company about the construction of
a factory to produce an anti-aircraft missile complex for use by armed groups operating in
the formerly occupied territories of Azerbaijan and that he was negotiating the provision of
uncrewed aerial vehicles for use by Armenian armed groups.
86.
Noting that each case must be decided on its own specific circumstances, the Working
Group considers that the allegations against Mr. Vardanyan are particularly serious,
involving the death of numerous individuals and large-scale property destruction in the
context of the armed conflict in Azerbaijan. The charges against Mr. Vardanyan include
financing terrorism, which the Security Council has required States to prevent and
criminalize under, inter alia, resolutions 1373 (2001) and 2462 (2019), as well as participation
in the creation and operation of illegal armed groups and illegal crossing of the State border.
Through his actions, he is alleged to have contributed to violent raids by armed groups that
resulted in numerous deaths, hundreds of injuries and the destruction of vast amounts of
property, including through rocket attacks and the laying of thousands of mines. On that
basis, the Working Group concludes that, notwithstanding the source’s claims to the contrary,
Mr. Vardanyan was detained on the basis of criminal charges alleging serious threats to
national security, public safety and public order.
87.
The source argues that the prosecution has ordered linguistic analysis of at least three
examples of Mr. Vardanyan’s statements and that, while all the former leaders of
Nagorno-Karabakh, including Mr. Vardanyan, were originally charged in the same criminal
case, Mr. Vardanyan’s case has been separated out into a stand-alone case. However, those
are matters concerning the sufficiency of the evidence and administrative details of trial
procedures. The Working Group does not operate as a supranational tribunal designed to
re-examine every aspect of domestic procedure or to reassess the sufficiency of the evidence
or to deal with errors of law allegedly committed by the domestic court. 32 Given the
seriousness of the charges, which link to grave violent actions, the investigation of statements
by high-level detainees does not indicate any human rights violation per se. The source also
notes that the Government response includes a reference to article 47 of the Constitution of
Azerbaijan on freedom of expression and argues that this does not align with international
law. However, the reference to that provision in the response does not displace the other
criminal provisions on which the allegations are based. Moreover, the source’s argument that
Mr. Vardanyan’s case has been separated out into a stand-alone case does not show that he
was detained for exercising his rights. In that light, none of those arguments addresses the
nature of the charges against Mr. Vardanyan nor the alleged factual basis for those charges,
which squarely relate to national security and public order, as detailed above.
88.
Given the foregoing considerations, it has not been shown that Mr. Vardanyan was
detained merely for protected statements and expressions falling under article 19 (2) of the
Covenant. Instead, the allegations raise matters of national security, public safety and public
order which, even to the extent that they may involve statements by Mr. Vardanyan, would
nonetheless fall under the exceptions covered by article 19 (3). Indeed, as the Working Group
has previously noted, the freedoms of expression and association are not absolute rights; they
31 Human Rights Committee, general comment No. 34 (2011), para. 30.
32 Opinions No. 40/2017, paras. 46, 53 and 56; and No. 63/2023 para. 79.
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can be subject to restrictions for reasons relating, in particular, to national security and public
order.33
89.
In relation to the source’s argument that Mr. Vardanyan’s detention arose from his
exercise of freedom of association, the Working Group notes that this right can also be
subjected to necessary restrictions, including in relation to national security, public safety or
public order. In the light of the considerations set out above, the Working Group considers
that it has not been demonstrated that Mr. Vardanyan was detained merely due to his exercise
of protected association falling under article 22 of the Covenant and that, instead, his
detention and the serious charges and factual allegations against him fall under the exceptions
permitted under article 22 (2). Similarly, to the extent that the source argues that
Mr. Vardanyan was detained due to his participation in political affairs, it does not
demonstrate a violation of his rights in the light of the serious nature of the charges for which
he is being investigated, as set out above.
90.
Noting the backdrop of armed conflict and noting the nature of the legal and factual
allegations against Mr. Vardanyan, which link to that context and involve serious violence,
including deaths, the Working Group does not consider that his detention amounts to a
violation under category II. However, the Working Group’s conclusion in relation to category
II should not indicate any assessment of Mr. Vardanyan’s actual guilt for the crimes with
which he has been charged. Instead of determining guilt, the category II assessment concerns
whether the materials indicate that the person has been detained on the basis of criminal
charges, and that the basis has not been used in a pretextual way to target detained individuals
as a result of the exercise of their rights.
91.
In the light of all the considerations above concerning Mr. Vardanyan’s rights, the
Working Group concludes that his deprivation of liberty was not arbitrary under category II.
(b)
Category III
92.
As regards category III, the source argues that Azerbaijan has violated
Mr. Vardanyan’s right to the presumption of bail and his right to the presumption of
innocence. The Government submits that his due process rights have been respected
throughout proceedings.
93.
At the outset, the Working Group notes that, in its further comments, the source
attempts to preclude the Government from commenting on matters related to the proceedings
against Mr. Vardanyan that it says were not raised in the petition. Those include the provision
of an interpreter to Mr. Vardanyan, his appointment of his own lawyer, his regular contact
with the Ombudsman and other related matters. However, those matters are potentially
relevant to the arguments the source has raised alleging the arbitrariness of M. Vardanyan’s
detention. The Working Group has the discretion to consider such matters, particularly as
they directly relate to his ability to exercise his fair trial rights and his detention more broadly,
and will take them into consideration where relevant.
94.
In relation to pretrial detention and the non-provision of bail, the Working Group notes
that article 9 (3) of the Covenant provides that “it shall not be the general rule that persons
awaiting trial shall be detained in custody”. The Working Group recalls the view of the
Human Rights Committee that pretrial detention should be an exception and be as short as
possible, and must be based on an individualized determination that it is reasonable and
necessary taking into account all the circumstances, for such purposes as to prevent flight,
interference with evidence or the recurrence of crime. Courts must examine whether
alternatives to pretrial detention, such as bail or other conditions, would render detention
unnecessary in the particular case.34
95.
The Working Group notes that the Azerbaijani courts provided an individualized
assessment of Mr. Vardanyan and set out a number of bases for his pretrial detention. That
assessment was upheld on appeal and extended. The basis for his pretrial detention included
that Mr. Vardanyan was a flight risk; that he was likely to obstruct or interfere with the
33 Opinion No. 67/2023, para. 96. See also, for example, opinion No. 23/2023, para. 111.
34 Human Rights Committee, general comment No. 35 (2014), para. 38.
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investigation; and that the nature, severity and circumstances of his alleged crimes warranted
detention. The Working Group recalls that it has consistently refrained from taking the place
of the national judicial authorities or acting as a kind of supranational tribunal when it is
urged to review the application of domestic law by the judiciary.35 Whereas the source argues
that the assessment was not individualized because the Court did not provide an analysis of
specific evidence against Mr. Vardanyan, that argument conflates two different matters –
namely, the sufficiency of the evidence, which the Working Group will not typically
reassess,36 and carrying out an individualized assessment. Given that the courts gave an
individualized assessment in the case and given the facts, which include Mr. Vardanyan’s
being detained while attempting to escape from the territory of Azerbaijan and the extremely
serious nature of the violent crimes with which he is charged,37 the source has not shown that
there was a violation of international human rights law on that basis.
96.
The source argues that alternatives to detention were not considered in ordering
pretrial detention. However, the source acknowledges that the detention order dated
27 September 2023 expressly refers to the requests by the defence for alternatives to
detention. The Working Group considers that that demonstrates that alternatives to detention
were considered by the Court. Whereas the source seeks to revisit the granular details of the
Court’s determination, the Working Group has consistently refrained from taking the place
of the national judicial authorities or acting as a kind of supranational tribunal to review the
application of domestic law by the judiciary.38 Bearing in mind the serious nature of the
violent crimes with which Mr. Vardanyan is charged and the circumstances of the case,
including the flight risk, the Working Group does not consider that any violation has been
demonstrated in relation to the denial of bail.
97.
In relation to the presumption of innocence, the Working Group recalls article 14 (2)
of the Covenant and the view of the Human Rights Committee that public officials should
refrain from prejudging the outcome of a trial, for example, by abstaining from making public
statements affirming the guilt of the accused.39 The application of that right must be assessed
in the specific circumstances of each case.
98.
The source refers to a statement by the Press Service of the State Security Service that
announced that “Ruben Vardanyan was detained on September 27, 2023, for the illegal acts
committed by him”. However, the Working Group has examined that statement and notes
that it commences by stating “based on the collected evidence, reasonable suspicions have
arisen that [Mr. Vardanyan]” and then specifies the three charges against Mr. Vardanyan.
The statement also frames its contents with the heading indicating that he was “detained as
an accused person” and prefaces the details with “according to the charges brought against
him”. That cannot be seen as invalidating his presumption of innocence and instead signals
the opposite – that his arrest is based on “reasonable suspicions”.40
99.
The source also argues that, in January 2024, the Prosecutor General of Azerbaijan
commented that Mr. Vardanyan and other detainees “were engaged in separatism, operating
illegally on the territory of Azerbaijan”. However, that does not specifically refer to the
charges against him, which were brought eight months later. The source points to statements,
including one the week before Mr. Vardanyan’s detention, in which the authorities referred
to the leadership of Nagorno-Karabakh as, inter alia, a “criminal regime”, and others such as
that in which the President referred to those “who waged a bloody war against [Azerbaijan]”,
including Mr. Vardanyan, as criminals who would be brought to justice soon, and to other
similar statements that the source submits were prejudicial to Mr. Vardanyan’s situation. The
source refers to statements made by the media, which it argues is controlled by the State. It
argues that those statements included reference to Mr. Vardanyan having “participated in
35 Opinion No. 5/2021, para. 38.
36 See, for example, opinion No. 63/2023, para. 79.
37 See, by comparison, opinion No. 8/2020, para. 62; and decision No. 8/1992 (noting there were no
indications of violence or incitement to violence or a threat to national security or public order that
would justify detention).
38 See, for example, opinion No. 15/2017, para. 66.
39 Human Rights Committee, general comment No. 32 (2007), para. 30.
40 The Working Group has reviewed all versions of the statement.
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financing terrorism, allocating funds for the organization of terrorist activities” and other
similar assertations.
100.
The Working Group has reviewed all the source’s arguments in that respect. It notes
that the statements highlighted by the source were made by persons not forming part of the
judiciary, let alone assigned to the judge in Mr. Vardanyan’s case. Having considered the
circumstances in their entirety in the present case, the Working Group considers that none of
those statements demonstrates that Mr. Vardanyan’s presumption of innocence for the
charges laid against him after his arrest in September 2023 has been undermined, particularly
in the light of the specific statement issued by the State Security Service on 28 September
2023, which explicitly referred to the legal charges against Mr. Vardanyan as an “accused
person” and highlighted that they were based on “reasonable suspicions”. That
notwithstanding, the Working Group emphasizes that public officials, including those of the
executive, should refrain from making statements prejudging the outcomes of cases by
asserting the guilt of the accused,41 even if such statements do not automatically undermine
the presumption of innocence, which must always be assessed in the light of the facts of the
specific case.
101.
The source argues that Mr. Vardanyan has been deprived of his right to have adequate
time and facilities for the preparation of his defence and other fair trial rights, as neither he
nor his counsel has been told anything about the charges against him. The Government
directly refutes this argument pointing out in detail the extensive provision made for him to
be notified of the charges and to have time to prepare his defence and the multiple petitions
that he has been able to file with the courts.
102.
The Working Group notes, inter alia, article 14 (3) of the Covenant: “in the
determination of any criminal charge against him, everyone shall be entitled … (a) [t]o be
informed promptly and in detail … of the nature and cause of the charge against him” and
article 14 (3) (b), which provides that a criminal defendant must be given “adequate time and
facilities for the preparation of his defence”.
103.
In that respect, the Working Group notes the Government’s detailed and substantiated
response conveying the occasions on which Mr. Vardanyan was notified of the charges
against him and related information, after he was arrested on 27 September 2023 while caught
effectively in flagrant delicto seeking to flee from Azerbaijan. It notes also that the statement
by the Press Service of the State Security Service on the day after his arrest contained details
of the basis for his arrest, which further supports the Government’s submissions in this
respect. Further information has been provided to his defence as the proceedings have
progressed. Taking into account the entire circumstances of the case, the Working Group
does not consider any violation has been demonstrated in those respects.
104.
On a related note, the source argues, in its further comments, that article 318 (1) of
the Criminal Code, which criminalizes illegal border crossing, is “invalid under international
law”. However, the Working Group notes that many countries criminalize illegal border
crossing. Whereas the source refers to a comment by the Committee on the Protection of the
Rights of All Migrant Workers and Members of Their Families, which was made in the
context of the rights of migrant workers and on the basis that the actions addressed by the
law did not concern national security. In that light, it is not a persuasive reference for the
present case. To the extent that the source argues that article 318 (1) was not being
consistently enforced and purportedly violates the tripartite agreement, the Working Group
notes that incomplete enforcement of border controls, including in the light of the tripartite
agreement, does not render underlying border control laws invalid. Moreover, Mr. Vardanyan
was detained on multiple charges, including those involving serious violent offending, which
distinguishes him from persons merely fleeing hostilities.
105.
The source adds that the judiciary in Azerbaijan is not independent, but rather is
subordinate to the executive, and that this is shown because, although the investigation has
been going on since September 2023, there have been no court hearings except to impose and
extend the pretrial detention, the Court has dismissed his requests for bail in a summary
manner and without making a detailed, individualized determination, and the Court has failed
41 Human Rights Committee, general comment No. 32 (2007), para. 30.
A/HRC/WGAD/2024/46
GE.25-01895
17
to provide any evidence to support the accusations against Mr. Vardanyan. The Government
refutes those allegations, pointing to the extensive provision made for Mr. Vardanyan’s due
process rights and highlighting the constitutionally protected independence of the judiciary.
In its further comments, the source reiterates its claims, arguing that the judiciary is generally
subordinate to the executive.
106.
The Working Group notes that the specific arguments raised by the source in that
respect have largely been addressed in the preceding discussion and do not raise new matters
demonstrating a lack of independence. Namely, the duration of the investigation for such
complex and serious crimes has not been shown to be excessive, let alone is there anything
to demonstrate a lack of independence of the judiciary; the courts have provided
individualized assessments and the Government has referred to various factual and
evidentiary matters in support of the allegations, including the military equipment and
materials found in Mr. Vardanyan’s office. In those circumstances, and having taken account
of all the submissions that have been made to it, the Working Group does not consider that it
has been shown that the judiciary lacks independence in the present case. More broadly, it
does not consider any of the other claims set out in the source’s submissions concerning
alleged mistreatment of Mr. Vardanyan, including an alleged period of incommunicado
detention, have demonstrated that his detention is arbitrary.
107.
For the reasons enumerated above, the Working Group concludes that the source has
not demonstrated violations of Mr. Vardanyan’s right to a fair trial and due process. His
detention is not arbitrary under category III.
(c)
Category V
108.
The source submits that Mr. Vardanyan’s detention is a direct result of his Armenian
ethnicity, his political opinions and his claimed status as a human rights defender, and it is
therefore discriminatory. The Government submits that he was not detained due to
discriminatory reasons, but rather for his alleged involvement in the serious crimes discussed
above.
109.
However, as set out above under category II, the detention of Mr. Vardanyan is based
on serious charges relating to his contribution to violent acts, including those involving the
deaths of persons and large-scale property destruction. There is no information demonstrating
that it was Mr. Vardanyan’s ethnicity that led to his detention instead of those serious
allegations. To the extent that the source argues that other individuals of Armenian ethnicity
have had their rights violated, this does not mean that it is discriminatory to detain
Mr. Vardanyan given the serious violent nature of the charges against him and the bases
provided for his detention, as detailed under the preceding categories. Similarly, the reference
to his political opinions and the claim that he is a human rights defender, made by the source,
do not displace the substantiated reasons provided for his detention, as set out above.
110.
Consequently, the Working Group finds that Mr. Vardanyan’s deprivation of liberty
does not constitute a violation of international law on the grounds of discrimination and is
not arbitrary under category V.
3.
Disposition
111.
In the light of the foregoing, the Working Group considers, pursuant to
paragraph 17 (b) of its methods of work, that the case is not one of arbitrary detention.
(Adopted on 11 November 2024)