After the start of military operations in Karabakh on September 19, social activists calling for peace in Azerbaijan began to be arrested. Amrah Tahmazov, Nemat Abbasov, and Emin Ibrahimov were sentenced to 30 days in prison. Journalist Nurlan Gahramanli (Libre) was sentenced to 30 days in prison.
Facebook posts of the arrested persons criticized Azerbaijan's operations in Karabakh and called for peace. The post written by Nurlan Gahramanli, who was allegedly summoned to the prosecutor's office for that reason, has been deleted.
Three of the detained persons were arrested on the basis of Article 388-1.1.1 of the Code of Administrative Offenses (Allowing the posting of information prohibited from dissemination in an information resource or information-telecommunication network), and it is said that Nemat Abbasov was arrested under Article 535.1 of the same Code (intentional disobedience to the legal request of a police officer or military personnel).
On the day of the September 19 operations, the Prosecutor General's Office released information for social network users and media representatives and shared information about the procedure for providing information related to the fight against terrorism. It noted that it is not allowed to share information that justifies terrorism or serves to promote it, and if such cases occur, fine and administrative arrest are envisaged.
According to Article 13.2 of the Law on Information, Informatization, and Protection of Information, the owner of the Internet information resource is independent in determining the content of the information placed in that information resource and the order of its posting. However, the distribution of some information is considered prohibited. This includes propaganda and financing of terrorism, methods and means of carrying out terrorism, information on organizing or conducting training for the purpose of terrorism, as well as open calls to terrorism; information on the promotion of violence and religious extremism, open calls aimed at inciting national, racial, or religious hatred and enmity, forcible change of the constitutional structure of the state, fragmentation of territorial integrity, forcible seizure or retention of power, and organization of mass riots; information constituting a state secret; information on the procedure or methods of manufacturing firearms, their complete parts, ammunition, explosive substances and devices; information on the methods and procedure of preparation or use of narcotics, psychotropic substances, and their precursors, places of their illegal acquisition, as well as places or methods of cultivation of plants containing narcotic substances; information related to pornography, including child pornography; information inciting the organization of gambling and other illegal betting games and participation in those games; information that promotes suicide as a way to solve problems, justifies, or incites suicide, explains the methods of committing suicide, or disseminated with the aim of organizing the suicide of several people in a group; information that is insulting or slanderous, as well as violates the inviloability of private life; information that violates intellectual property rights; other information prohibited by the laws of the Republic of Azerbaijan.
On the Facebook accounts of the persons listed above, the information shared is mostly aimed at criticizing the military operations conducted by the Azerbaijani government, comparing these operations with the Russia-Ukraine war, and the official intervention of Moscow in the operations, condemning the war and calling for peace. That is, the information related to the promotion of terrorism was not reflected in those posts.
According to Paragraph 1 of Article 50 of the Constitution, everyone is free to legally seek, receive, impart, produce, and disseminate any information.
According to Article 10 of the European Convention on Human Rights, signed and ratified by Azerbaijan, everyone has the right to freedom of expression. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.
In the judgment of the European Court of Human Rights regarding freedom of expression in the case of Fatullayev v. Azerbaijan, it is announced that in accordance with Paragraph 2 of Article 10, freedom of expression does not only apply to "information" or "ideas" that are favorable or harmless, reflecting indifference, but also to "information" or "ideas" that offend, shock, or disturb the state or any section of the population.
Pluralism, tolerance, and open-mindedness require this, and there is no "democratic society" without them (see Handyside v. the United Kingdom, 7 December 1976, § 49, Series A no. 24).
The following are the social network statuses that are the reason for possible administrative arrests:
- "Apart from the trolls of the state and blood-fed pimps like Habib, no one supports this operation, does not share it, and does not want the death of the poor children. The people want peace, coexistence, and living like human beings" Amrah Tahmazov;
- “On the ill-intentioned and immoral propaganda campaign created by the populism of our government and our military: Any mentality that legitimizes human deaths is stupid and wicked. Whatever their intention, thoughts that serve grudge, hatred, death, and any such concepts must be rejected. There is no way out, just like the stories of our sovereignty and territorial integrity. Because we all know what cruelties the current government is remembered for in other sovereign territories. International law and constitutional narratives are also full of populism and empty pathos. The alternative to the alleged junta, separatist regime is authoritarianism and dictatorship. Because this is the government that governs the state of Azerbaijan. In short, taking into account the existing conditions and standards, our demand and position should be coexistence in peace, tranquility, stable and sustainable security conditions." #NoWarYesPeace Nemat Abbasov;
- "This time, hasn’t there been anyone who said, "This operation is against Russia's interests'', or "it is a blow to Russia's reputation", or something like that? The eco-performances on the road to Lachin, the establishment of the Lachin post, and this operation are all on the same line. There is consent of Russia in all of them. Now it's a little obvious, they say we use it and so on. In other cases, they generally denied this.
The essence is that if you become a slave, you always have to justify the master. Otherwise, you should try to break free. Slaves are always afraid of freedom. They need to constantly cover up their slavery... And now, yes, Russia will give us Karabakh and leave by itself. You don’t say." Emin Ibrahimov;
- Journalist Nurlan Gahramanli shared the fragmented map of the Republic of Azerbaijan on his social network account: “The map I dream about every night before I go to sleep.”
None of these texts (in the first 3 written posts) contained information related to the type of information prohibited from dissemination listed in Article 13-2 of the Law on Information, Informatization, and Protection of Information.
At the same time, the court that arrested the activists did not appoint an expert in any case to determine whether these posts contained information related to the type of information prohibited. According to Article 82.1 of the Code of Administrative Offenses, an expert opinion is appointed by the judge's decision for the purpose of clarifying issues that require special knowledge in the field of science, art, technique, or profession for the resolution of any issue that is important during proceedings on an administrative offense.
In all the above cases, the court independently determined that these texts belong to the type of information that is prohibited, and as a result, assumed the role of an expert.
Tribunat concludes that the posts that lead to an administrative arrest are not aimed at promoting terrorism, but rather at condemning military operations. That is, those comments do not contain any content that would be classified as information prohibited by law (except for insulting elements in Amrah Tahmazov's post), and they do not contain information that will cause a public threat, constitute a state secret, or harm the course of operations.
Nurlan Gahramanli's post about territorial disintegration should be evaluated taking into account the person's influence on social processes. In this case, the sanction applied is not proportional. The punishment applied cannot be considered adequate because his influence as a public figure and whether the post he shared constitutes a real threat or not has not been evaluated.
In conclusion, administrative detentions for these statements cannot be considered necessary in a democratic society.
