[Preliminary draft. Case might change. Final version will be published by December 31, 2016.]

Facts – Hilal Mammadov is an Azerbaijani journalist and a defender of minority rights. Mammadov has always been very vocal about his opinions both in newspapers and on social networking sites about policies of the ruling authorities. On 21 June 2012, the Nasimi District Police arrested Mammadov on drug charges when the authorities allegedly found five grams of heroin from his person, and approximately 30 grams from his place of residence. The Nasimi District Court (Baku City) sentenced Mammadov to three months’ detention. Mr. Mammadov appealed the sentence and requested to be permitted to serve the term under house arrest, but the Baku Appeal Court denied him provisional release. On July 4, 2012, the Ministry of the Interior and the Office of the Prosecutor General of Azerbaijan issued a joint statement that read that Mr. Mammadov was arrested on the basis of information received about his alleged “cooperation with the intelligence agency of a foreign country”, “activities against the security and the territorial integrity of Azerbaijan” and “incitement of national, racial and religious hatred,” completely contradicting the original drug charges. Mammadov was subsequently charged under articles 274 (treason) and 283.2.2 (inciting national, racial, social and religious hatred, hostility and ethnic discrimination) of the Criminal Code. Mammadov was sentenced to five years in jail under a decision issued by Baku Court of Grave Crimes on September 27, 2013. The Baku Court of Appeals Court upheld this decision on December 25, 2013. 

Issue – Does Mammadov’s arrest, conviction, and sentencing on incitement charges under Azerbaijani law comply with international law standards?

Rule – Under the Universal Standard of the ICCPR, incitement laws must pass the scrutiny of a six-prong test. The first prong requires legality of the law – the charges must be formalized by law, and the law must be sufficiently precise. The second prong requires legitimate grounds for the incitement charge. Legitimate grounds include protecting the rights of others, national security, public order, public health, or morals. The third prong requires necessity – the restrictive measures must be necessary for a legitimate purpose, and must be the only way to achieve protection. The forth prong requires proportionality – the restriction on expression should not be overbroad. It must also be the least intrusive instrument among those that might achieve the protective function, and be proportionate to the interesting being protected. The fifth prong requires the existence of intent, specifically, the intent to incite discrimination, hostility, or violence. The sixth prong requires causation between the expression and threat.

Analysis – First prong: The Azerbaijani crime of inciting hatred is properly codified in Criminal Code of the Azerbaijan Republic Article 283. The law is precise because it allows the defendant to foresee, to a degree that is reasonable in the circumstances, the consequences that a given action may entail. Therefore, the first prong is satisfied.

Second prong: The criminal statute seeks to protect individuals and groups from hatred or violence based on their nationality, race, religion or ethnic origins. These terms do amount to the substantial interest of protecting the rights of others and security concerns. Therefore, the second prong is satisfied.

Third prong: As was the case with the second prong, article 283 can legitimately restrict freedom of expression. From this standpoint, this prong is satisfied because the only way to protect the rights of others and the public peace against hateful and violent acts committed via incitement is to put a limit on the public or mass communications that are capable of disturbing the peace. However, the case’s facts show us that the implementation of article 283 – imprisonment for five years- cannot be the only way to achieve protection. Therefore, the third prong is not verified.

Forth prong: This prong fails because the punishment received is disproportional to the interest being protected. In this case, Mammadov’s arrest and conviction was completely arbitrary. Many scholars and activists see his arrest as the government’s attempt at silencing his exposing human rights violations.

Fifth prong: This prong fails because although the statute does list intent as an element, in this case, Mammadov lacked specific intent to incite discrimination, hostility, or violence. Specifically, there was no particular event or act that could be linked to Mammadov’s arrest and conviction.

Sixth prong: This prong fails because in Mammadov’s case, his opposing opinions, although critical, did not amount to a connection to a direct and immediate threat.  

Conclusion – The Azerbaijani law on incitement and its procedural use violates the Universal Standard. Azerbaijan does not comply with international standards on the law of incitement.