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A/HRC/WGAD/2024/46

Opinion No. 46/2024 concerning Ruben Vardanyan (Azerbaijan)

UNO-Arbeitsgruppe über willkürliche Inhaftierung (WGAD) · 2024-11-15 · en UN

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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9

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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15

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)