Having access to funds and to banking facilities is crucial for NGOs and human rights lawyers. But around the world governments are increasingly imposing restrictions on such access—whether through preventing NGOs from receiving certain types of donations, or preventing them from accessing assets they already hold. These restrictions are one way in which a government can try to silence those in civil society who challenge it.
In Azerbaijan, in recent years, many prominent NGOs and lawyers have had criminal proceedings brought against them, and their bank accounts frozen.
The Democracy and Human Rights Resource Centre (DHRRC), an Azerbaijani NGO that works to protect human rights, had its account frozen in 2014 in connection with criminal proceedings brought against it and a number of other NGOs in Azerbaijan. Mr. Asabali Mustafayev was the Chair of the DHRRC at the time, and one of its founers, and as a lawyer had taken many cases against Azerbaijan to the European Court of Human Rights. His bank account was also frozen in 2014 and a travel ban was imposed, restricting his movement out of the country. Attempts were made to challenge the measures in the courts in Azerbaijan, without success.
The DHRRC and Mr. Mustafayev argue that the freezing of their bank accounts is part of a pattern of repressive measures that have been taken against them and other human rights defenders in Azerbaijan, with the aim of silencing dissent against the government.
The Open Society Justice Initiative filed a third party intervention at the European Court of Human Rights in this case (Application Nos. 74288/14 and 64568/16) to provide an analysis of (i) the importance, for associations and human rights lawyers, of having access to funds and banking facilities; and (ii) the way in which the European Convention on Human Rights (ECHR) protects the right to such access. In its written comments, the Justice Initiative focused on Article 11 and Article 1, Protocol 1 of the ECHR (although there are other rights that may also be engaged – notably Articles 10 and 18).
The Justice Initiative provided the following analysis, to assist the Court in its consideration of this case:
Importance of access to banking facilities. Banking facilities allow NGOs to receive donations and to manage and protect their assets; reduce operating risks and costs; keep restricted gifts and grants separate from general operating funds; and act as an internal control to improve transparency and prevent the misappropriation of assets. The importance for individuals of having access to bank accounts has been recognised by regional and international bodies, including the World Bank and the UN General Assembly, in the Sustainable Development Goals.
Impact of restricting access to banking facilities. Removing or restricting access to banking facilities prevents human rights defenders from using the financial assets that they have, prevents them from receiving and managing grants and donations, dissuades them from continuing their work and from continuing to exercise their right to associate, and reduces the confidence of donors in their organisations.
Article 11 protects the right of associations and human rights lawyers to receive and to use funds. An account freeze interferes with the right of organisations and their members to associate by preventing them from receiving funds and from using the funds in their accounts. Asset freezing and restrictions on access to banking facilities imposed as a result of an individual’s involvement with an association, and which prevents or deters them from continuing to associate with that organisation, constitutes a separate interference with the exercise of their article 11 rights.
Account freezing interferes with rights under Article 1, Protocol 1. Freezing the accounts of NGOs or human rights lawyers accounts also interferes with their property rights because it controls the way in which they can use their funds, and may restrict the ability of a lawyer to practice and the ability of an NGO to function.
Account freezes violate Article 11 and A1P1 rights. Account freezes impose significant burdens on individuals and organisations. Where account freezes do not have a proper basis in law, are imposed for lengthy periods of time, or are imposed to repress civil society or as a reprisal, they are very unlikely to satisfy the exceptions under Article 11 and A1P1 and will therefore be in violation of the ECHR.
April 22, 2014 Criminal proceedings are started against a number of prominent NGOs in Azerbaijan.
May 19, 2014 The DHRRC’s bank account is frozen by court order.
October 30, 2014 Mr. Asabali Mustafayev’s bank account is frozen by court order.
2014 The DHRRC applies to the European Court of Human Rights.
2014-2016 Azerbaijan maintains the bank account freezes against the DHRRC and Mr. Mustafayev.
2016 The DHRRC brings a second claim to the European Court, this time with Mr. Mustafayev also as an applicant.
October 15, 2018. The Open Society Justice Initiative submits a third-party intervention to the European Court of Human Rights.