A v Azerbaijan & 24 other applications
REDRESS, along with two other organisations, has participated in the submission of a third-party intervention in a case of alleged unlawful and arbitrary arrest and detention of a number of members of the Azerbaijani LGBTI community and their subsequent ill-treatment and forced medical examination.
In mid-September 2017, the Azerbaijani police launched a series of raids in Baku as part of a crackdown on prostitution. A and the other twenty-four applicants belonging to the LGBTI community were arrested and subjected to ill-treatment and forced medical examinations by police officers and custodial staff while in detention.
The applicants complain that their arrest and detention were unlawful and arbitrary, and that they were identified on the basis of their sexual orientation and gender identity. Moreover, they allege that the authorities did not conduct an effective investigation into their ill-treatment and forced medical examination.
ACTION FOR JUSTICE
With a letter dated 9 October 2017, the Commissioner for Human Rights of the Council of Europe demanded formal explanations from the Azerbaijani Minister of Internal Affairs, in particular with regard to the identification of the detained individuals based on their sexual orientation and gender identity, and to allegations of ill-treatment and forced medical examinations.
A few days later, on 13 October 2017, a group of UN experts, including the Independent Expert on protection against violence and discrimination based on sexual orientation and gender identity, the Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health and the Chair-Rapporteur of the Working Group on Arbitrary Detention, published a statement calling the Azerbaijani authorities to “investigate promptly and thoroughly all allegations of torture and ill-treatment and ensure that perpetrators are prosecuted and, if convicted, punished with adequate sanctions”.
Between March and April 2018, A and the other twenty-four applicants lodged their applications with the European Court of Human Rights alleging multiple violations of their Convention rights, in particular Articles 3 (prohibition of inhuman or degrading treatment), 5 (right to liberty and security), 6 (right to a fair trial), 8 (right to respect for private life) and 14 (prohibition of discrimination). The Court gave notice of the applications to the Governments of Azerbaijan and put questions to the parties.
REDRESS INVOLVEMENT IN THE SUBMISSION OF A THIRD-PARTY INTERVENTION
REDRESS has been involved in the submission of a third-party intervention along with ILGA-Europe (the European Region of the International Lesbian, Gay, Bisexual, Trans and Intersex Association) and Civil Rights Defenders. The submission deals with the questions of how the victim’s status as a sexual or gender minority impacts on the assessment of whether the threshold under Article 3 of the Convention has been met; to what extent forced medical examinations constitute a violation of Articles 3 and 8 of the Convention; the content of the state’s positive obligation adequately to investigate allegations of torture and ill-treatment with discriminatory elements; and the impact of discriminatory laws and practices against LGBTI persons in Azerbaijan.
The submission argues that, in light of the jurisprudence of international and regional bodies such as the UN Committee against Torture and the UN Human Rights Committee, states have a heightened obligation to protect vulnerable persons and certain minority or marginalized individuals or populations especially at risk of torture. The discriminatory use of mental or physical violence is in fact an important indicator that an act constitutes torture. In light of the vulnerability of LGBTI persons to discriminatory violence, their ill-treatment may attain the level of severity required for there to be a violation of Article 3 of the Convention.
The submission also argues that, in light of the jurisprudence of both international and regional human rights bodies and courts, the forced medical examination of detainees may amount to a breach of Articles 3 and 8 of the Convention if the individual subjected to the medical examination is particularly vulnerable and the examination is carried out with discriminatory motives.
The submission also argues that, according to international law and practice, states have specific obligations adequately to investigate allegations of ill-treatment and torture with discriminatory elements, in light of the heightened vulnerability of the group to which the victims belong.
Finally, the submission argues that Azerbaijan’s hate crime law does not include gender identity and sexual orientation as protected grounds, and that state authorities are generally hostile towards LGBTI persons. Both factors contribute to heighten the vulnerability of individuals belonging to the LGBTI community.
Case name: A V AZERBAIJAN AND 24 OTHER APPLICATIONS
Court/Body: European Court of Human Rights
Date filed: 15 July 2019 (third-party intervention)
Current status: Case pending
Legal representative: ILGA-Europe, Civil Rights Defenders and REDRESS