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FATULLAYEV v. AZERBAIJAN - 40984/07 [2010] ECHR 623 (22 April 2010)
URL: http://www.bailii.org/eu/cases/ECHR/2010/623.html
Cite as:
[2010] ECHR 623,
(2011) 52 EHRR 2,
52 EHRR 2
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FIRST
SECTION
CASE OF FATULLAYEV v.
AZERBAIJAN
(Application
no. 40984/07)
JUDGMENT
STRASBOURG
22 April 2010
This judgment will become
final in the circumstances set out in Article 44 § 2
of the Convention. It may be subject to editorial revision.
In the case of Fatullayev v.
Azerbaijan,
The
European Court of Human Rights (First Section), sitting as a Chamber
composed of:
Christos Rozakis, President,
Nina
Vajić,
Dean Spielmann,
Sverre Erik
Jebens,
Giorgio Malinverni,
George Nicolaou,
judges,
Lətif Hüseynov,
ad hoc judge,
and Søren
Nielsen, Section
Registrar,
Having
deliberated in private on 25 March 2010,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
The
case originated in an application (no. 40984/07) against the Republic
of Azerbaijan lodged with the Court under Article 34 of the
Convention for the Protection of Human Rights and Fundamental
Freedoms (“the Convention”) by an Azerbaijani national,
Mr Eynulla Emin oglu Fatullayev (Eynulla Emin
oğlu Fətullayev –
“the applicant”), on 10 September 2007.
The
applicant was represented by Mr I. Ashurov, a lawyer practising
in Baku. The Azerbaijani Government (“the Government”)
were represented by their Agent, Mr Ç. Asgarov.
The
applicant alleged, in particular, that his criminal convictions for
statements made in newspaper articles authored by him had constituted
a violation of his freedom of expression, that he had not been heard
by an independent and impartial tribunal established by law, and that
his right to the presumption of innocence had not been respected.
On
3 September 2008 the President of the First Section decided to give
notice of the application to the Government. It was also decided to
examine the merits of the application at the same time as its
admissibility (Article 29 § 3 of the Convention).
Mr K. Hajiyev, the judge elected in respect of
Azerbaijan, withdrew from sitting in the Chamber (Rule 28 of the
Rules of Court). The Government accordingly appointed Mr L. Hüseynov
to sit as an ad hoc judge in his place (Article 27 § 2 of
the Convention and Rule 29 § 1 of the Rules of Court).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The
applicant was born in 1976 and lives in Baku.
The
applicant was the founder and chief editor of the newspapers Gündəlik
Azərbaycan, published in the Azerbaijani language, and
Realny Azerbaijan (“Реальный
Азербайджан”),
published in the Russian language. The newspapers were widely known
for often publishing articles harshly criticising the Government and
various public officials.
Prior
to the events complained of in this application, the applicant had
been sued for defamation in a number of sets of civil and criminal
proceedings instituted following complaints by various high-ranking
government officials, including cabinet ministers and members of
parliament. In the most recent set of proceedings, on 26 September
2006 the applicant was convicted of defamation of a cabinet minister
and conditionally sentenced to two years' imprisonment. Moreover,
according to the applicant, at various times he and his staff had
received numerous threatening phone calls demanding him to stop
writing critical articles about high-ranking officials or even to
completely cease the publication of his newspapers.
In
2007 two sets of criminal proceedings were brought against the
applicant in connection with, inter alia, two articles
published by him in Realny Azerbaijan.
A. First set of proceedings
1. Statements made by the applicant
In
2005 the applicant visited, as a journalist, the area of
Nagorno Karabakh and other territories controlled by the
Armenian military forces. This was one of a few exceptionally allowed
and organised visits by Azerbaijani nationals to those territories
and to Armenia in the years following the Nagorno-Karabakh war, as
movement across the front line in Nagorno-Karabakh and across the
Armenian-Azerbaijani border remains severely restricted to this day
from both sides. During his visit he met, among others, some
officials of the self-proclaimed, unrecognised “Nagorno-Karabakh
Republic” and some ordinary people. In the aftermath of this
visit, in April 2005 the applicant published an article called “The
Karabakh Diary” (Russian: “Карабахский
дневник”) in
Realny Azerbaijan.
In
the article, styled as a diary, the applicant described his visits to
several towns, including Lachin, Shusha, Agdam and Khojaly, which had
formerly been inhabited primarily by ethnic Azerbaijanis who had been
forced to flee their homes during the war. He described both the
ruins of war and the new construction sites that he had seen in those
towns, as well as his casual conversations with a number of local
Armenians he had met during his visit.
One
of the topics discussed in “The Karabakh Diary” concerned
the Khojaly massacre of 26 February 1992. Discussing this topic, the
applicant made certain statements which could be construed as
differing from the commonly accepted version of the Khojaly events
according to which hundreds of Azerbaijani civilians had been killed
by the Armenian armed forces, with the reported assistance of the
Russian (formerly Soviet) 366th Motorised Rifle Regiment, during
their assault on the town of Khojaly in the course of the war in
Nagorno-Karabakh. Specifically, the article contained the following
passages:
“Having seen Khojaly, I could not hide my
astonishment. This Azerbaijani town, which had been razed to the
ground, has been completely reconstructed and converted into a town
called Ivanovka, named after an Armenian general who had actively
participated in the occupation of Khojaly. The Khojaly tragedy and
the deep wounds inflicted on our soul by the Armenian expansionism on
this long-suffering Azerbaijani land permeated all my meetings in
Askeran [a town in Nagorno-Karabakh close to Khojaly]. How so? Can it
be true that nothing human is left in these people? However, for the
sake of fairness I will admit that several years ago I met some
refugees from Khojaly, temporarily settled in Naftalan, who openly
confessed to me that, on the eve of the large-scale offensive of the
Russian and Armenian troops on Khojaly, the town had been encircled
[by those troops]. And even several days prior to the attack, the
Armenians had been continuously warning the population about the
planned operation through loudspeakers and suggesting that the
civilians abandon the town and escape from the encirclement through a
humanitarian corridor along the Kar-Kar River. According to the
Khojaly refugees' own words, they had used this corridor and, indeed,
the Armenian soldiers positioned behind the corridor had not opened
fire on them. Some soldiers from the battalions of the NFA [the
National Front of Azerbaijan, a political party], for some reason,
had led part of the [refugees] in the direction of the village of
Nakhichevanik, which during that period had been under the control of
the Armenians' Askeran battalion. The other group of refugees were
hit by artillery volleys [while they were reaching] the Agdam Region.
When I was in Askeran, I spoke to the deputy head of the
administration of Askeran, Slavik Arushanyan, and compared his
recollection of the events with that of the Khojaly inhabitants who
came under fire from the Azerbaijani side.
I asked S. Arushanyan to show me the corridor which the
Khojaly inhabitants had used [to abandon the town]. Having
familiarised myself with the geographical area, I can say, fully
convinced, that the conjectures that there had been no Armenian
corridor are groundless. The corridor did indeed exist, otherwise the
Khojaly inhabitants, fully surrounded [by the enemy troops] and
isolated from the outside world, would not have been able to force
their way out and escape the encirclement. However, having crossed
the area behind the Kar-Kar River, the row of refugees was separated
and, for some reason, a group of [them] headed in the direction of
Nakhichevanik. It appears that the NFA battalions were striving not
for the liberation of the Khojaly civilians but for more bloodshed on
their way to overthrow A. Mutalibov [the first President of
Azerbaijan] ...”
More
than a year after the publication of the above article, during the
period from December 2006 to January 2007, a person registered under
the username “Eynulla Fatullayev”, identifying himself as
the applicant, made a number of postings on the publicly accessible
Internet forum of a website called AzeriTriColor. The postings were
made in a specific forum thread dedicated to other forum members'
questions to the forum member named “Eynulla Fatullayev”
about the contents of “The Karabakh Diary”. In his
various answers to those questions, the person posting under the
username “Eynulla Fatullayev” made, inter alia,
the following statements:
“I have visited this town [Naftalan] where I have
spoken to hundreds (I repeat, hundreds) of refugees who insisted that
there had been a corridor and that they had remained alive owing to
this corridor ...
You see, it was wartime and there was a front line... Of
course, Armenians were killing [the civilians], but part of the
Khojaly inhabitants had been fired upon by our own [troops]...
Whether it was done intentionally or not is to be determined by
investigators. ...
[They were killed] not by [some] mysterious [shooters],
but by provocateurs from the NFA battalions ... [The corpses] had
been mutilated by our own ...”
2. Civil action against the applicant
On
23 February 2007 Ms T. Chaladze, the Head of the Centre for
Protection of Refugees and Displaced Persons, brought a civil action
against the applicant in the Yasamal District Court. She claimed that
the applicant had “for a long period of time insulted the
honour and dignity of the victims of the Khojaly Tragedy, persons
killed during those tragic events and their relatives, as well as
veterans of the Karabakh War, soldiers of the Azerbaijani National
Army and the entire Azerbaijani people”. She alleged that the
applicant had done so by making the above-mentioned statements in his
article “The Karabakh Diary” as well as by making similar
insulting statements on the forum of the AzeriTriColor website.
Ms Chaladze attributed the authorship of the Internet forum
postings made from the forum account with the username “Eynulla
Fatullayev” to the applicant.
In
his submissions to the court, the applicant argued that the forum
postings at the AzeriTriColor website had not been written by him and
denied making these statements. He also argued that, in “The
Karabakh Diary”, he had merely reported the information given
to him by persons whom he had interviewed.
The
Yasamal District Court, sitting as a single-judge formation composed
of Judge I. Ismayilov, heard evidence from a number of refugees
from Khojaly, all of whom testified about their escape from the town
and noted that they had not been fired upon by Azerbaijani soldiers
and that the applicant's assertions concerning this were false.
Furthermore, having examined electronic evidence and witness
statements, the court established that the postings on the
AzeriTriColor forum had indeed been made by the applicant himself and
that they had been posted in response to various questions by readers
of Realny Azerbaijan. The court found that the applicant and
the newspaper had disseminated false and unproven statements
tarnishing the honour and dignity of the survivors of the Khojaly
events.
In
view of the above findings, on 6 April 2007 the Yasamal District
Court upheld Ms Chaladze's claim and ordered the applicant to
publish, in Realny Azerbaijan and on related websites, a
retraction of his statements and an apology to the refugees from
Khojaly and the newspaper's readers. The court also ordered the
applicant and Realny Azerbaijan to pay 10,000 New Azerbaijani
manats (AZN – approximately 8,500 euros) each in respect of
non-pecuniary damage. This total award of AZN 20,000 was to be spent
on upgrading the living conditions of the refugees from Khojaly
temporarily residing in Naftalan.
3. Criminal conviction
Thereafter,
on an unspecified date, a group of four Khojaly survivors and two
former soldiers who had been involved in the Khojaly battle,
represented by Ms Chaladze, lodged a criminal complaint against the
applicant with the Yasamal District Court, under the private
prosecution procedure. They asked that the applicant be convicted of
defamation and of falsely accusing Azerbaijani soldiers of having
committed an especially grave crime.
At
a preliminary hearing held on 9 April 2007 the applicant filed an
objection against the entire judicial composition of the Yasamal
District Court. He claimed that all of the judges of that court had
been appointed to their positions in September 2000 for a fixed
five-year term and that their term of office had expired in 2005. He
therefore argued that the composition of the court meant that it
could not be regarded as a “tribunal established by law”.
This objection was dismissed.
The
hearing of the criminal case took place on 20 April 2007 and was
presided over by Judge I. Ismayilov, sitting as a single judge.
In
his oral submissions to the court, the applicant pleaded his
innocence. In particular, he denied making the statements on the
forum of the AzeriTriColor website and maintained that those
statements had been made by some unknown impostor who had used his
name for this purpose.
The
court heard a linguistic expert who gave an opinion on the
applicant's statements. The expert testified, inter alia,
that, owing to the specific style in which “The Karabakh Diary”
had been written, it was difficult to differentiate whether the
specific statements and conclusions made concerning the Khojaly
events could be attributable to the applicant personally or to those
persons whom he had allegedly interviewed in Nagorno-Karabakh. He
also noted that it was difficult to analyse separately the specific
phrases taken out of the context of the article as a whole, and that
it appeared from the context that the author had attempted to convey
the positions of both sides to the conflict. The court also heard
several witnesses who testified about the Khojaly events and stated
that there had been no escape corridor for the civilians and that the
civilians had been shot at from the enemy's positions. The court
further found that the Internet forum of the AzeriTriColor website,
in essence, had replaced the Internet forum of the Realny
Azerbaijan website, which had become defunct in 2006, and that
the statements posted on that forum under the username “Eynulla
Fatullayev” had indeed been made by the applicant himself.
Lastly, the court found that, through his statements made in “The
Karabakh Diary” and his Internet forum postings, the applicant
had given a heavily distorted account of the historical events in
Khojaly and had deliberately disseminated false information which had
damaged the reputation of the plaintiffs and had accused the soldiers
of the Azerbaijani Army (specifically, the two plaintiffs who had
fought in Khojaly) of committing grave crimes which they had not
committed. The court convicted the applicant under Articles 147.1
(defamation) and 147.2 (defamation by accusing a person of having
committed a grave crime) of the Criminal Code and sentenced him to
two years and six months' imprisonment.
The
applicant was arrested in the courtroom and taken to Detention
Facility No. 1 on the same day (20 April 2007).
On
6 June 2007 the Court of Appeal upheld the Yasamal District Court's
judgment of 20 April 2007.
On
21 August 2007 the Supreme Court dismissed a cassation appeal by the
applicant and upheld the lower courts' judgments.
B. Second set of proceedings
1. “The Aliyevs Go to War”
In
the meantime, on 30 March 2007, Realny Azerbaijan had
published an article entitled “The Aliyevs Go to War”
(Russian: “Алиевы идут
на войну”). The
article was written by the applicant but published under the
pseudonym “Rovshan Bagirov”.
This
analytical article was devoted to the possible consequences of
Azerbaijan's support for a recent “anti-Iranian”
resolution of the United Nations (UN) Security Council, which had
called for economic sanctions against that country. The article
referred to the current Azerbaijani government as “the Aliyev
clan” and “the governing Family” and expressed the
view that the government had sought United States (US) support for
President Ilham Aliyev's “remaining in power” in
Azerbaijan in exchange for Azerbaijan's support for the US
“aggression” against Iran.
The
article continued as follows:
“It is also known that, immediately after the UN
[Security Council] had voted for this resolution, [the authorities]
in Tehran began to seriously prepare for the beginning of the
'anti-Iranian operation'. For several years, the military
headquarters of the Islamic regime had been developing plans for
repulsing the American aggression and counter-attacking the US and
their allies in the region. After 24 March 2007 Azerbaijan, having
openly supported the anti-Iranian operation, must prepare for a
lengthy and dreadful war which will result in large-scale destruction
and loss of human life. According to information from sources close
to official Paris, the Iranian General Staff has already developed
its military plans concerning Azerbaijan in the event that Baku takes
part in the aggression against Iran. Thus, the Iranian long-range
military air force, thousands of insane kamikaze terrorists from the
IRGC [the Islamic Revolution's Guardian Corps] and hundreds of
Shahab-2 and Shahab-3 missiles will strike the following main targets
on the territory of Azerbaijan ...”
The
article continued with a long and detailed list of such targets,
which included, inter alia, active petroleum platforms on the
shelf of the Caspian Sea, the Sangachal Oil Terminal and other
petroleum plants and terminals, the Baku Tbilisi Ceyhan
petroleum pipeline and the Baku Tbilisi-Erzurum gas pipeline,
the building of the Presidential Administration, the building of the
US Embassy in Azerbaijan, buildings of various ministries, the Baku
seaport and airport, and a number of large business centres housing
the offices of major foreign companies doing business in Azerbaijan.
Further,
it was noted in the article that the Azerbaijani Government should
have maintained neutrality in its relations with both the US and
Iran, and that its support of the US position could lead, in the
event of a war between those two States, to such grave consequences
as loss of human life among Azeris in both Azerbaijan and Iran. In
this connection, the author noted that the US military forces were
already operating four airbases on the territory of Azerbaijan and
had expressed an interest in operating the Gabala Radar Station,
which was then operated by Russia.
The
article also discussed the issue of possible unrest, in the event of
a conflict with Iran, in the southern regions of Azerbaijan populated
by the Talysh ethnic minority, who are ethnically and linguistically
close to the Persians. Among other things, the article appeared to
imply that the current ruling elite, a large number of whom allegedly
came from the region of Nakhchivan, was engaging in regional nepotism
by appointing people from Nakhchivan to government posts in southern
areas of the country, including the Lenkoran region. In particular,
the article stated:
“Thus, the Talysh have long been expressing their
discontent with the fact that [the central authorities] always
appoint to administrative positions in Lenkoran persons hailing from
Nakhchivan who are alien to the mentality and problems of the region.
... The level of unemployment in the region is terribly high, drug
abuse is flourishing, every morning hundreds of unemployed Talysh
cluster together at the 'slave' [that is, cheap labour] market in
Baku. Is this not a powder keg?
But the authorities, seemingly unaware of the danger of
the developing situation, are giving preference to their standard
methods – repressive measures and paying off the Talysh elite.
It seems as if the authorities are deliberately pushing the Talysh
into the embrace of Iranian radicals.”
The
article noted that certain high-ranking Iranian officials and
ayatollahs were of Talysh ethnicity, and that there were “several
million” Talysh living across the Iranian border who could
“support their kin” living in Azerbaijan in the event of
a war. Lastly, the article concluded that the Azerbaijani authorities
did not realise all the dangerous consequences of the geopolitical
game they were playing.
2. Criminal conviction
On
16 May 2007 the investigation department of the Ministry of National
Security (“the MNS”) commenced a criminal investigation
in connection with the publication of the article under Article 214.1
of the Criminal Code (terrorism or threat of terrorism).
On
22 May 2007 the investigation authorities conducted searches in the
applicant's flat and in the office of the Realny Azerbaijan
and Gündəlik Azərbaycan newspapers. They found
and seized certain photographs and computer disks from the
applicant's flat and twenty computer hard drives from the newspaper's
office.
On
29 May 2007 the applicant was transferred to the MNS detention
facility.
On
31 May 2007 the Prosecutor General made a statement to the press,
noting that the article published in Realny Azerbaijan
contained information which constituted a threat of terrorism and
that a criminal investigation had been instituted in this connection
by the MNS. This statement was reported on Media Forum, an Internet
news portal, as follows:
“Today, the Prosecutor General ... provided an
explanation concerning the criminal case instituted by the Ministry
of National Security in respect of Eynulla Fatullayev, the
editor-in-chief of Gündəlik Azərbaycan and
Realny Azerbaijan newspapers, and stated that the Internet
site [of the newspapers] had indeed contained information threatening
acts of terrorism. According to Azadliq Radio, the Prosecutor General
stated: 'The site mentions specific State facilities and addresses
which would allegedly be bombed by the Islamic Republic of Iran. This
information constitutes a threat of terrorism.' [He] noted that, in
connection with this, the MNS had instituted criminal proceedings
under Article 214.1 of the Criminal Code. The Prosecutor General
stated that the MNS would shortly make a statement concerning the
results of the investigation.”
Another
Internet news portal, Day.Az, reported as follows:
“The Internet site of Realny Azerbaijan,
founded by Eynulla Fatullayev, indeed contains a threat of terrorism.
The Prosecutor General ... made this statement. According to him, the
Internet site of Realny Azerbaijan mentions specific addresses
of certain State facilities and asserts that, according to available
information, they will be bombed by the Islamic Republic of Iran.
'This information constitutes a threat of terrorism. Therefore, the
Ministry of National Security (the MNS) has instituted criminal
proceedings under Article 214.1 of the Criminal Code and is taking
investigative measures.' [The Prosecutor General] noted that the MNS
would keep the public informed about the progress in the case...”
On
3 July 2007, by a decision of an MNS investigator, the applicant was
formally charged with the criminal offences of threat of terrorism
(Article 214.1 of the Criminal Code) and inciting ethnic
hostility (Article 283.2.2 of the Criminal Code).
On
the same day, 3 July 2007, pursuant to a request by the Prosecutor
General's Office, the Sabail District Court remanded the applicant in
custody for a period of three months in connection with this criminal
case. The applicant appealed. On 11 July 2007 the Court of Appeal
upheld the Sabail District Court's decision.
On
4 September 2007 the applicant was also charged with tax evasion
under Article 213.2 of the Criminal Code on account of his alleged
failure to duly declare taxes on his personal earnings as a newspaper
editor.
During
the trial, among other evidence, the prosecution produced evidence
showing that in May 2007 the full electronic version of “The
Aliyevs Go to War” had been forwarded by e-mail to the offices
of a number of foreign and local companies in Baku. A total of eight
employees of these companies testified during the trial that, after
reading the article, they had felt disturbed, anxious and frightened.
The court found that the publication of this article had pursued the
aim of creating panic among the population. The court further found
that, in the article, the applicant had threatened the Government
with destruction of public property and acts endangering human life,
with the aim of exerting influence on the Government to refrain from
taking political decisions required by national interests.
On
30 October 2007 the Assize Court found the applicant guilty on all
charges and convicted him of threat of terrorism (eight years'
imprisonment), incitement to ethnic hostility (three years'
imprisonment) and tax evasion (four months' imprisonment). The
partial merger of these sentences resulted in a sentence of eight
years and four months' imprisonment. Lastly, the court partially
merged this sentence with the sentence of two years and six months'
imprisonment imposed on the applicant in the previous criminal case,
which resulted in a total sentence of eight years and six months'
imprisonment. In imposing this final sentence, the court found that,
on account of his previous convictions, the applicant was a repeat
offender and assessed this as an aggravating circumstance. The court
also ordered that 23 computers and several compact discs, previously
seized as material evidence from the newspapers' offices, be
confiscated in favour of the State. Lastly, the court ordered that
AZN 242,522 (for unpaid taxes) and AZN 17,800 (for unpaid social
security contributions) be withheld from the applicant.
On
16 January 2008 the Court of Appeal upheld the Assize Court's
judgment of 30 October 2007.
On
3 June 2008 the Supreme Court upheld the lower courts' judgments.
In
his defence speech at the trial and in his appeals to the higher
courts, the applicant had complained, inter alia, of a breach
of his presumption of innocence on account of the Prosecutor
General's statement to the press, relying directly on Article 6 §
2 of the Convention. His arguments under the Convention in this
respect had been summarily rejected.
It
appears that, on an unspecified date during the period when the
above-mentioned criminal proceedings were taking place, the
publication and distribution of Gündəlik Azərbaycan
and Realny Azerbaijan were halted, in circumstances which are
not entirely clear from the material available in the case file.
II. RELEVANT DOMESTIC LAW
A. Criminal Code of 2000
Article
147 of the Criminal Code, in force at the relevant time, provided as
follows:
“147.1. Defamation, that is, dissemination,
in a public statement, publicly exhibited work of art or through the
mass media, of knowingly false information discrediting the honour
and dignity of a person or damaging his or her reputation,
shall be punishable by a fine in the amount of one
hundred to five hundred conditional financial units, or by community
service for a term of up to two hundred and forty hours, or by
corrective labour for a term of up to one year, or by imprisonment
for a term of up to six months.
147.2. Defamation by accusing [a person] of having
committed a serious or especially serious crime
shall be punishable by corrective labour for a term of
up to two years, or by restriction of liberty for a term of up to two
years, or by imprisonment for a term of up to three years.”
Article
214.1 of the Criminal Code provided as follows:
“Terrorism, that is, perpetration of an explosion,
arson or other acts creating a danger to human life or significant
material damage or other grave consequences, if such acts are carried
out for the purpose of undermining public security, frightening the
population or exerting influence on the State authorities or
international organisations to take certain decisions, as well as the
threat to carry out the above-mentioned acts with the same purposes,
shall be punishable by deprivation of liberty for a term
of eight to twelve years together with confiscation of property.”
Article
283 of the Criminal Code provided as follows:
“283.1. Acts aimed at incitement to
ethnic, racial or religious hostility or humiliation of ethnic
dignity, as well as acts aimed at restricting citizens' rights or
establishing citizens' superiority on the basis of their ethnic or
racial origin, if committed openly or by means of the mass media,
shall be punishable by a fine in the amount of one
thousand to two thousand conditional financial units, or by
restriction of liberty for a term of up to three years, or by
imprisonment for a term of two to four years.
283.2. The same acts, if committed:
283.2.1. with the use of violence or the threat of
use of violence;
283.2.2. by a person using his official position;
283.2.3. by an organised group;
shall be punishable by imprisonment for a term of three
to five years.”
B. Code of Criminal Procedure of 2000
Under
Article 449 of the Code of Criminal Procedure (“the CCrP”),
an accused or suspected person can lodge a complaint against
procedural steps or decisions of the prosecuting authorities
(preliminary investigator, investigator, supervising prosecutor,
etc.) with the court supervising the pre trial investigation.
Article 449.3 of the CCrP provides that such a complaint may be
lodged, inter alia, in the event of a violation of a
detainee's rights.
Articles
450 and 451 of the CCrP provide for the procedure for examining such
complaints and outline the supervising court's competence. In
particular, under Article 451.1 of the CCrP, the supervising court
may take one of the following two decisions in respect of a complaint
under Article 449 of the CCrP: (a) declaring the impugned procedural
step or decision lawful; or (b) declaring the impugned procedural
step or decision unlawful and quashing it. Article 451.3 of the CCrP
provides that in the event of a finding that the impugned step or
decision is unlawful, the prosecutor supervising the investigation or
a superior prosecutor is to take immediate measures aimed at stopping
the violations of the complainant's rights.
C. Code of Civil
Procedure of 2000
52. Chapter
27 of the Code of Civil Procedure (“the CCP”), consisting
of Articles 296-300, provides for the procedure for examining civil
lawsuits concerning decisions and acts (or omissions) of “the
relevant executive authorities, local self-administration
authorities, other authorities and organisations and their
officials”. In particular, in accordance with Article 297.1
of the CCP, decisions and acts (or omissions) covered by this
procedure include those which violate a person's rights or freedoms,
impede a person's exercise of his or her rights or freedoms, or
impose an unlawful obligation or liability upon a person.
D. Appointment and tenure of judges
53. The
relevant provisions of the Law on Courts and Judges of 10 June 1997,
in force before the amendments adopted on 28 December 2004, and the
relevant domestic law concerning the status and composition of the
Judicial Legal Council, in force prior to the enactment of the Law on
the Judicial Legal Council of 28 December 2004, are summarised in
Asadov and Others v. Azerbaijan
((dec.), no. 138/03, 12 January 2006).
54. Law
No. 817-IIQD on Additions and Amendments to the Law on Courts and
Judges, of 28 December 2004 (“Law No. 817-IIQD”), in
force from 30 January 2005, introduced a number of amendments
concerning, inter alia,
the process for the selection and appointment of candidates for
judicial office, terms of office of judges, the code of judicial
ethics, disciplinary procedures in respect of judges and the immunity
of judges. Specifically, Articles 93-1 to 93-4 of the Law on Courts
and Judges, as amended by Law No. 817-IIQD, provide that candidates
for judicial office are selected by the Judge Selection Committee,
established by the Judicial Legal Council, according to a procedure
involving written and oral examinations and long-term training
courses where each candidate's performance is subsequently graded by
the Judge Selection Committee. In accordance with Article 96 of the
Law on Courts and Judges, as amended by Law No. 817-IIQD, judges are
initially appointed for a five-year term and, during this term, must
attend a judicial training course at least once. If following the
initial five-year term no professional shortcomings are detected in
the judge's work, he or she is reappointed to an indefinite term of
office (expiring at the age of 65 or, in exceptional cases, 70)
pursuant to a recommendation by the Judicial Legal Council. Prior to
the latter amendment, judges were appointed for fixed terms of five
or ten years, depending on the court in which they served.
55. Clause
1 of the Transitional Provisions of Law No. 817-IIQD provided as
follows:
“The terms of office of judges of the courts of
the Republic of Azerbaijan who were appointed before 1 January 2005
shall expire on the date of the appointment of new judges to those
courts ...”
56. The
Law on the Judicial Legal Council of 28 December 2004 provides that
the Judicial Legal Council has 15 members (including representatives
of the executive and legislative authorities, judges of various
courts, and representatives of the prosecution authorities and the
Bar Association) and is a body competent to organise the process of
selecting candidates for judicial office and submitting
recommendations to the President on judicial appointments, and to
perform other tasks including organising training courses for judges,
providing logistical support to the courts and taking disciplinary
measures against judges.
III. COUNCIL OF EUROPE DOCUMENTS
The
following are extracts from Resolution 1614 (2008) of the
Parliamentary Assembly of the Council of Europe on the functioning of
democratic institutions in Azerbaijan:
“19. As regards freedom of expression, the
Azerbaijani authorities should:
19.1. initiate the legal reform aimed at decriminalising
defamation and revise the relevant civil law provisions to ensure
respect for the principle of proportionality, as recommended in
Resolution 1545 (2007); in the meantime, a
political moratorium should be reintroduced so as to put an end to
the use of defamation lawsuits as a means of intimidating journalists
...”
The
following are extracts from the report by the Council of Europe
Commissioner for Human Rights, Mr Thomas Hammarberg, on his visit to
Azerbaijan, from 3 to 7 September 2007 (CommDH(2008)2, 20 February
2008):
“B. A matter of urgency: the
decriminalisation of defamation
69. At the time of the Commissioner's visit,
it was reported that there were seven journalists in prison, out of
whom four were for libel or defamation under Articles 147 and 148 of
the Criminal Code. Both international monitoring bodies and local
NGOs claimed that charging individuals for defamation was used as a
means to avoid the dissemination of news that could be detrimental to
high-ranking officials or to other influential people. According to
the parliamentary assembly of the Council of Europe rapporteurs, the
number of charges has grown in the last few years. Out of fear of
imprisonment journalists are compelled to resort to self-censorship.
In 2005, the President, Mr Ilham Aliyev had called for abandoning the
use of criminal provisions in matters of defamation, but this was not
respected. Some cases, which the Commissioner was informed about
point to abusive or unfair imprisonment of journalists.
70. ... Indeed, many journalists remain
incarcerated. Mr Eynulla Fatullayev, who was held at the pre-trial
detention centres on the premises of the Ministry for National
Security is still incarcerated. This journalist had criticised the
authorities' and armed forces' conduct during the siege of Khojaly.
His critical analysis of the handling of the crisis cost him a two
and half year sentence for libel. Furthermore, in a concerning
stacking of incriminations, he was sentenced on 30 October 2007 to an
additional eight and a half years, this time on charges of terrorism
and incitement to racial hatred. When this journalist met the
Commissioner, he said that the fact that he had been jailed was
evidence of political pressure on him as a journalist. After the
decision on this second sentence, he reiterated this comment. The
Commissioner mentioned his imprisonment for libel to the authorities
and called for his immediate release. The Commissioner once again
urges the authorities to release Mr Eynulla Fatullayev.
71. The authorities' response to questions
regarding this issue is that actions against journalists are caused
by their lack of professionalism, which leads them to writing in a
non-responsible manner and ignoring their legal and ethical duties.
There should indeed be proper training and education of journalists,
who have a responsibility in the exercise of their profession and
should follow a code of ethics in line with European standards. At
the same time, officials should allow easy access to information and
accept criticism inherent to their position of accountability in
society.
72. Nevertheless, the fundamental issue here
is whether people, in particular but not only journalists, should be
deprived of liberty and other criminal law consequences on account of
views expressed. The supplementary issue, as already dealt with, is
whether, where it still exists as an offence under criminal law, as
it is the case in Azerbaijan, the prosecution of defamation does not
in fact lead to instances of abusive prosecution and/or excessive
sentences. There is clearly a general trend to move towards a
decriminalisation of defamation in Europe today. International
standards allow the penalisation of defamation through criminal law
but only in cases of hate speech directly intended at inciting
violence. To corroborate the requirement of intention, there has to
be a direct link between the intention and the likeliness of the
violence. ... In most countries, the criminal route is not used:
there is a moratorium on such laws. The criminalisation of defamation
has a chilling effect on freedom of expression. The legal framework
in Azerbaijan provides for a wide range of possibilities for
criminalisation, notably for 'damage to honour and reputation'. Work
on a draft law on defamation has been going on for more than a year,
involving a working group of parliamentarians and media experts, with
the support of the OSCE. Emphasis would be shifted from criminal law
to civil law.
73. The Commissioner was encouraged by talks
he had on this issue with the Minister of Justice. He recommends the
launching of an open public debate that would help define a
rights-based approach that would remove defamation from the criminal
books and offer alternative protection to other rights and interests.
Council of Europe experts could provide assistance in that respect.
In order to support the holding of that debate, the President could
reiterate his 2005 declaration on a moratorium on the use of the
criminal provision. The Commissioner recommends, as a first step, the
release of all those, who have been criminally prosecuted under the
relevant provisions of the criminal code.”
IV. INFORMATION NOTE ON THE KHOJALY EVENTS
59. Most
of the facts of the reported massacre of Azerbaijani civilians in
Khojaly are contested by the Azerbaijani and Armenian sides. As for
third party sources, the following are extracts from reports of
international organisations and human-rights NGOs concerning these
events.
60. The
background paper prepared by the Directorate General of Political
Affairs of the Council of Europe, appended to the report by the
Parliamentary Assembly's Political Affairs Committee on the conflict
over the Nagorno-Karabakh region dealt with by the OSCE Minsk
Conference (rapporteur Mr D. Atkinson, 29 November 2004,
Doc. 10364), states:
“In February 1992, almost day-to-day four years
after the Sumgait events, the ethnic Armenian forces attacked the
only airport in [Nagorno-Karabakh], in Khojali, to the North
of the local capital. At the time, the population of Khojali was
7000. The Azerbaijani view is that the taking of Khojali, which left
some 150 defenders of the airport dead, was followed by unprecedented
brutalities against the civilian population. In one day, reportedly
613 unarmed people were massacred and close to 1300 were captured –
many of them while trying to flee through an alleged humanitarian
corridor. The Armenian side contests this view and the number of
casualties.
The Khojali massacre sparked an exodus of
Azerbaijanis and precipitated a political crisis in Baku. Five years
later, in 1997, President Aliyev issued a Decree referring to the
tragedy as the 'Khojali genocide'.”
61. The
following are extracts from the Human Rights Watch World Report 1993
on the former Soviet Union:
“During the winter of 1992, Armenian forces went
on the offensive, forcing almost the entire Azerbaijani population of
the enclave to flee, and committing unconscionable acts of violence
against civilians as they fled. The most notorious of these attacks
occurred on February 25 in the village of Khojaly. A large column of
residents, accompanied by a few dozen retreating fighters, fled the
city as it fell to Armenian forces. As they approached the border
with Azerbaijan, they came across an Armenian military post and were
cruelly fired upon. At least 161 civilians are known to have been
murdered in this incident, although Azerbaijani officials estimate
that about 800 perished. Armenian forces killed unarmed civilians and
soldiers who were hors de combat, and looted and sometimes
burned homes.”
62. The
Memorial Human Rights Centre, based in Moscow, dispatched its
observers to Nagorno-Karabakh during the war. The following are
extracts from the report by the Memorial Human Rights Centre “On
Mass Violations of Human Rights in Connection with the Armed Capture
of the Town of Khojaly on the Night of 25 to 26 February 1992”
(translated from Russian):
“As practically all refugees from Khojaly claimed,
military personnel from the 366th Regiment took part in the assault
on the town. According to the information received from the Armenian
side, combat vehicles of the 366th Regiment which took part in the
assault on the town shelled Khojaly but did not actually enter the
town. As the Armenian side asserts, the participation of the military
personnel [from the 366th Regiment] was not sanctioned by a written
order from the Regiment's command. ...
Part of the population started to leave Khojaly soon
after the assault began, trying to flee in the direction of Agdam.
There were armed people from the town's garrison among some of the
fleeing groups. People left in two directions: (1) from the eastern
side of the town in the north-east direction along the river, passing
Askeran to their left (this specific route, according to Armenian
officials, was provided as a 'free corridor'); (2) from the northern
side of the town in the north-east direction, passing Askeran to
their right (it appears that a smaller number of refugees fled using
this route). Thus, the majority of civilians left Khojaly, while
around 200-300 people stayed in Khojaly, hiding in their houses and
basements. As a result of the shelling of the town, an unascertained
number of civilians were killed on the territory of Khojaly during
the assault. The Armenian side practically refused to provide
information about the number of people who so perished. ...
According to the officials of the NKR [the
self-proclaimed 'Nagorno-Karabakh Republic'], a 'free corridor' was
provided for fleeing civilians..., which began at the eastern side of
the town, passed along the river and continued to the north-east,
leading to Agdam and passing Askeran to its left. ... According to
the officials of the NKR and those taking part in the assault, the
Khojaly population was informed about the existence of this
'corridor' through loudspeakers mounted on armoured personnel
carriers. ... NKR officials also noted that, several days prior to
the assault, leaflets had been dropped on Khojaly from helicopters,
urging the Khojaly population to use the 'free corridor'. However,
not a single copy of such a leaflet has been provided to Memorial's
observers in support of this assertion. Likewise, no traces of such
leaflets have been found by Memorial's observers in Khojaly. When
interviewed, Khojaly refugees said that they had not heard about such
leaflets. In Agdam and Baku, Memorial's observers have interviewed 60
persons who had fled Khojaly during the assault on the town. Only one
person out of those interviewed said that he had known about the
existence of the 'free corridor' (he had been told about it by a
'military man' from the Khojaly garrison). ... Several days prior to
the assault, the representatives of the Armenian side had, on
repeated occasions, informed the Khojaly authorities by radio about
the upcoming assault and urged them to immediately evacuate the
population from the town. The fact that this information had been
received by the Azerbaijani side and transferred to Baku is confirmed
by Baku newspapers (Bakinskiy Rabochiy). ...
A large column of inhabitants [of Khojaly] rushed out of
town along the river (route 1 – [see above]). There were armed
people from the town garrison in some of the groups of refugees.
These refugees, who walked along the 'free corridor'..., were fired
upon, as a result of which many people were killed. Those who
remained alive dispersed. Running [refugees] came across Armenian
military posts and were fired upon. Some refugees managed to escape
to Agdam, some, mainly women and children (the exact number is
impossible to determine), froze to death while wandering around in
mountains, some ... were captured ... The site of the mass killing of
refugees, as well as their corpses, was filmed on videotape when the
Azerbaijani units carried out an operation to evacuate the corpses to
Agdam by helicopter. ... Among the corpses filmed on the videotape,
the majority were those of women and elderly people; there were also
children among those killed. At the same time, there were also people
in uniform among those killed. ... Within four days, about 200
corpses were evacuated to Agdam. A few score of corpses bore signs of
mutilation. ...
Official representatives of the NKR and members of the
Armenian armed forces explained the death of civilians in the zone of
the 'free corridor' by the fact that there were armed people fleeing
together with the refugees, who were firing at Armenian outposts,
thus drawing return fire, as well as by an attempted breakthrough by
the main Azerbaijani forces. According to members of the Armenian
armed forces, the Azerbaijani forces attempted to battle through from
Agdam in the direction of the 'free corridor'. At the moment when the
Armenian outposts were fighting off this attack, the first groups of
Khojaly refugees approached them from the rear. The armed people who
were among the refugees began firing at the Armenian outposts. During
the battle, one outpost was destroyed ..., but the fighters from
another outpost, of whose existence the Azerbaijanis were unaware,
opened fire from a close distance at the people coming from Khojaly.
According to testimonies of Khojaly refugees (including those
published in the press), the armed people inside the refugee column
did exchange gunfire with Armenian outposts, but on each occasion the
fire was opened first from the Armenian side. ...”
THE LAW
I. ALLEGED VIOLATIONS OF ARTICLE 10 OF THE CONVENTION
The
applicant complained under Articles 6, 10 and 13 of the Convention
that each of his criminal convictions for the statements he had made
in the newspaper articles and Internet forums had amounted to an
unjustified interference with his right to freedom of expression and
that, in this connection, his rights to a fair trial and an effective
remedy had also been infringed in the relevant criminal proceedings.
Having regard to the circumstances of the case, the Court considers
that these complaints fall to be examined solely under Article 10 of
the Convention, which reads as follows:
“1. Everyone has the right to freedom of
expression. This right shall include freedom to hold opinions and to
receive and impart information and ideas without interference by
public authority and regardless of frontiers. This Article shall not
prevent States from requiring the licensing of broadcasting,
television or cinema enterprises.
2. 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.”
A. Admissibility
The
Court notes that these complaints are not manifestly ill-founded
within the meaning of Article 35 § 3 of the Convention. It
further notes that they are not inadmissible on any other grounds.
They must therefore be declared admissible.
B. Merits
The
Court notes that the applicant was convicted and sentenced to prison
terms in two unrelated sets of criminal proceedings concerning two
separate sets of statements made in different publications.
Therefore, the Court will examine separately whether there has been a
violation of Article 10 in respect of each of the convictions.
1. First criminal conviction
(a) The parties' submissions
The
Government submitted that the applicant's conviction in the first set
of criminal proceedings had been prescribed by law and had been aimed
at protecting the reputation and rights of the plaintiffs.
As
to the necessity of the interference, the Government submitted that
the applicant's conviction had been justified on account of the
nature of his statements concerning the Khojaly events, a very
sensitive issue for the Azerbaijani people as a whole, and in
particular for those who lived and fought in that region. During the
events in question, at least 339 inhabitants of Khojaly, including 43
children and 109 women, had been killed, 371 persons had been
taken hostage, 200 had disappeared and 421 had been wounded. The
applicant's publications asserted that some of those who had perished
had been killed by Azerbaijani fighters and that, moreover, the
corpses of the victims had been mutilated by the Azerbaijanis. These
statements ran counter to the overwhelming evidence indicating that
those acts had been committed by Armenian fighters who had been
assisted by the soldiers of the former Soviet 366th Motorised Rifle
Regiment stationed in Nagorno-Karabakh. As such, the applicant's
statements damaged the reputation of those plaintiffs who were former
Khojaly inhabitants and also accused those plaintiffs who had fought
in the battle of having committed serious crimes against humanity.
The Government maintained that, in making those statements, the
applicant had not acted in good faith and had breached the ethics of
journalism.
In
the Government's submission, the applicant's conviction served the
purpose of protecting the right to respect for private life of the
plaintiffs, which was guaranteed by Article 8 of the Convention.
Article 17 of the Convention prevented a person from relying on his
or her Convention rights (in the present case, on Article 10) in
order to engage in activities aimed at the destruction of any of the
rights and freedoms set forth in the Convention. In that connection,
the Government referred to the case of D.I. v. Germany
(no. 26551/95, Commission decision of 26 June 1996), in which the
interference with the applicant's freedom of expression had been
found to be compatible with the Convention owing to the nature of his
remarks, in which he had denied the existence of gas chambers at
Auschwitz. In view of the above, the Government concluded that,
similarly, the decisions of the domestic courts in the present case
had been based on the striking of a balance between a right protected
under Article 8 of the Convention and a right protected under Article
10 of the Convention, and that they had correctly found that the
reputation of the survivors of the Khojaly events outweighed the
applicant's freedom to impart information of a revisionist nature.
The
applicant maintained that the domestic courts had failed to provide
any reasonable justification for the interference with his freedom of
expression.
The
applicant agreed with the Government that the topic of the Khojaly
massacre was indeed a very sensitive issue. However, the applicant
noted that certain issues concerning the events in question had not
been fully investigated. For example, he pointed out that the figures
produced by the Government in the present case as to the total number
of Khojaly victims were inconsistent with other official government
sources, which estimated the number of people killed at 613,
including 106 women and 23 children, and the number of people
wounded and missing at 487 and 1,257. Some private publications
provided different estimates. The applicant also noted that former
President Mutalibov, who himself had been accused of failure to
defend Khojaly, had implied that some Azerbaijani military units
might have been responsible for failing to prevent the high number of
civilian casualties. Some Azerbaijani military commanders, including
the former Commander of Internal Troops F. Hajiyev, had been
either accused or even convicted of failing to organise the proper
defence of Khojaly and, thus, to prevent or reduce losses among the
civilian population. According to the applicant, the main reason why
different sources provided divergent information concerning the exact
number of victims and the exact course of events during the fall of
Khojaly was that a thorough and conclusive investigation of the
events in question from the factual and historical point of view had
not yet been completed. Accordingly, the applicant contended that,
precisely because the issue was very sensitive and important, a
public debate about these events was necessary in order to establish
the complete truth and the responsibility of all the culprits of this
massacre. Likewise, in connection with these events, there was also a
need for a public debate in the context of internal politics in
Azerbaijan, as the topic of the Khojaly massacre had been used by
former President Mutalibov, the National Front Party and other
political forces in their political struggle for power.
The
applicant noted that “The Karabakh Diary” was an article
written in the style of a reportage, in which he had merely conveyed
what he had seen himself and what he had heard from the people whom
he had met during his visit, and which contained only very brief
conclusions of his own on the basis of what he had seen and heard
from others. The applicant argued that, in the article, he had merely
conveyed the statements of Slavik Arushanyan, who had told the
applicant his version of the events during the interview. The article
did not directly accuse any of the plaintiffs or any other specific
Azerbaijani national of committing any crime. Likewise, it did not
contain any slanderous or humiliating remarks in respect of any
specific person and in respect of the people of Khojaly in general.
The
applicant noted that, in his article, there was no statement
asserting that any of the Khojaly victims had been killed or
mutilated by Azerbaijani fighters. These specific statements had been
made by an unidentified person on the Internet forums of the
AzeriTriColor website. The applicant insisted that these statements
had not been made by him and that, despite his submissions to this
effect before the domestic courts, he had been convicted mainly on
the basis of these statements, which had been made by someone else.
In any event, the statements did not deny the fact of the “Khojaly
tragedy”; they simply made assumptions as to what could
possibly have caused it. Even though these assumptions might have
been made in the absence of sufficient factual basis, they should
have been regarded as recourse to a degree of exaggeration allowed by
the freedom of expression.
The
applicant stressed that, while he had been found to have provided a
distorted historical account of the Khojaly events, there was no
provision in Azerbaijani law defining any type of liability for
having suspicions about the Khojaly massacre or even denying it.
Therefore, he could not be held liable on that account. Instead, it
had been found that his statements had allegedly defamed the six
plaintiffs in his criminal case, even though neither “The
Karabakh Diary” nor the Internet forum postings had
specifically mentioned any of those persons by name or otherwise.
The
applicant argued that it was inappropriate and unethical to draw
analogies between the present case and D.I. v. Germany (cited
above). He contended that, since the Khojaly events had not yet
received a conclusive legal assessment, it was incorrect to equate
them to the Holocaust. There was a difference between a State policy
on deliberate murders of prisoners in death camps and the loss of
civilians who had fallen victim to military operations during a
single battle. In the latter case, it could be argued that the
Azerbaijani authorities shared a part of the responsibility for
casualties among civilians, as they had not been able to prevent the
massacre by the Armenian troops. The applicant stressed that, in “The
Karabakh Diary”, he had been far from denying the fact of the
massacre and had not attempted to exonerate those responsible. He had
simply attempted to convey to the Azerbaijani readers the views of
the Armenian population of Nagorno Karabakh on this subject. The
article itself was motivated by good will and constituted an attempt
at thawing the relations between the conflicting parties.
Lastly,
the applicant submitted that his criminal convictions should be
viewed in the context of the Government's “aggressive policy”
aimed at suppressing the freedom of speech. He noted that the
situation in respect of the freedom of expression had seriously
deteriorated in recent years and that an increasing number of
journalists were being attacked, arrested or convicted. This had been
reflected in a number of reports by various international
organisations. These persecutions had resulted in self censorship
among a number of critics of the Government. The applicant further
claimed that, in his case, by convicting him, the authorities had
been primarily driven by the desire to suppress his journalistic
activity in general, as his writings constantly criticised the
Government's policies and exposed public officials' involvement in
corruption and violations of civil and political rights. His ongoing
journalistic investigation into the case of E. Huseynov (a
journalist assassinated in 2005) had implicated certain high ranking
State officials, and as a result, prior to the events of the present
case, he had received threats of arrest and conviction.
(b) The Court's preliminary remarks
The
discussion in the present judgment of the applicant's statements on
the Khojaly events is intended solely for the purposes of the present
case, and is made in the context of the Court's review of
restrictions on debates of general interest, in so far as relevant
for determining whether the national courts of the respondent State
overstepped their margin of appreciation in interfering with the
applicant's freedom of expression. This judgment is not to be
understood as containing any factual or legal assessment of the
Khojaly events or any arbitration of historical claims relating to
those events.
Furthermore,
the Court observes that, in connection with his statements in “The
Karabakh Diary” and the related statements made in the Internet
forum postings, the applicant was held liable in the civil
proceedings and was subsequently convicted on the basis of the same
statements in the criminal proceedings. The Court notes, however,
that the applicant did not specifically complain under Article 10
about the civil action against him. Therefore, the Court will examine
solely the compatibility with Article 10 of the applicant's criminal
conviction; however, for the purposes of such examination, it will,
where necessary, have regard to the entirety of the factual
circumstances surrounding the alleged interference with the
applicant's rights.
(c) The Court's assessment
The Court considers, and it was not disputed by the
Government, that the applicant's conviction by the national courts
amounted to an “interference” with his right to freedom
of expression. Such interference will infringe the Convention if
it does not satisfy the requirements of paragraph 2 of Article 10. It
should therefore be determined whether it was “prescribed by
law”, whether it pursued one or more of the legitimate aims set
out in that paragraph and whether it was “necessary in a
democratic society” in order to achieve those aims.
The applicant's conviction was indisputably based on
Articles 147.1 and 147.2 of the Criminal Code and was designed to
protect “the reputation or rights of others”, namely the
group of soldiers and civilian survivors of the Khojaly events who
had lodged the criminal complaint against the applicant. Accordingly,
the Court accepts that the interference was “prescribed by law”
and had a legitimate aim under Article 10 § 2 of the Convention.
Consequently,
the Court's remaining task is to determine whether the
interference was “necessary in a democratic society”.
At
the outset, the Court notes that it cannot accept the Government's
reliance on Article 17 of the Convention or their argument that the
present case is somehow similar to D.I. v. Germany (cited
above). The situation in the present case is not the same as
situations where the protection of Article 10 is removed by
virtue of Article 17 owing to the negation or revision of clearly
established historical facts such as the Holocaust (see, mutatis
mutandis, Lehideux and Isorni v. France, 23 September
1998, § 47, Reports of Judgments and Decisions 1998 VII).
In the present case, the specific issues discussed in “The
Karabakh Diary” were the subject of an ongoing debate (see
paragraph 87 below). As the Court will discuss further below, it does
not appear that the applicant attempted to deny the fact that the
mass killings of the Khojaly civilians had taken place or that he
expressed contempt for the victims of these events. Rather, the
applicant was supporting one of the conflicting opinions in the
debate concerning the existence of an escape corridor for the
refugees and, based on that, expressing the view that some
Azerbaijani fighters might have also borne a share of the
responsibility for the massacre. By doing so, however, he did not
seek to exonerate those who were commonly accepted to be the culprits
of this massacre, to mitigate their respective responsibility or to
otherwise approve of their actions. The Court considers that the
statements that gave rise to the applicant's conviction did not
amount to any activity infringing the essence of the values
underlying the Convention or calculated to destroy or restrict the
rights and freedoms guaranteed by it. It follows that, in the present
case, the applicant's freedom of expression cannot be removed from
the protection of Article 10 by virtue of Article 17 of the
Convention.
The Court reiterates that, as a matter of general
principle, the “necessity” for any restriction on freedom
of expression must be convincingly established. Admittedly, it is in
the first place for the national authorities to assess whether there
is a “pressing social need” for the restriction and, in
making their assessment, they enjoy a certain margin of appreciation.
In cases, such as the present one, concerning the press, the national
margin of appreciation is circumscribed by the interest of the
democratic society in ensuring and maintaining a free press.
Similarly, that interest will weigh heavily in the balance in
determining, as must be done under paragraph 2 of Article 10, whether
the restriction was proportionate to the legitimate aim pursued (see
Fressoz and Roire v. France [GC], no. 29183/95, §
45, ECHR 1999-I).
The Court's task in exercising its supervisory
function is not to take the place of the competent domestic courts
but rather to review under Article 10 the decisions they have taken
pursuant to their power of appreciation. This does not mean that the
supervision is limited to ascertaining whether the respondent State
exercised its discretion reasonably, carefully or in good faith; what
the Court has to do is to look at the interference complained of in
the light of the case as a whole, including the content of the
comments held against the applicant and the context in which he or
she made them (see Cumpǎnǎ and Mazǎre v. Romania
[GC], no. 33348/96, § 89, ECHR 2004-XI).
In particular, the Court must determine whether the
reasons adduced by the national authorities to justify the
interference were “relevant and sufficient” and whether
the measure taken was “proportionate to the legitimate aims
pursued”. In doing so, the Court has to satisfy itself that the
national authorities, basing themselves on an acceptable assessment
of the relevant facts, applied standards which were in conformity
with the principles embodied in Article 10 (see, among many other
authorities, Chauvy and Others v. France, no. 64915/01, §
70, ECHR 2004-VI).
In
the present case, the statements held against the applicant concerned
the Khojaly massacre which took place in the course of the war in
Nagorno-Karabakh. More specifically, he was found to have baselessly
accused Azerbaijani fighters of killing some of the Khojaly victims
and mutilating their corpses and, by doing so, to have damaged the
reputation of the specific individuals who had lodged a criminal
complaint against him.
Owing
to the fact that the Nagorno-Karabakh war was a fairly recent
historical event which resulted in significant loss of human life and
created considerable tension in the region and that, despite the
ceasefire, the conflict is still ongoing, the Court is aware of the
very sensitive nature of the issues discussed in the applicant's
article. The Court is aware that, especially, the memory of the
Khojaly victims is cherished in Azerbaijani society and that the loss
of hundreds of innocent civilian lives during the Khojaly events is a
source of deep national grief and is generally considered within that
society to be one of the most tragic moments in the history of the
nation. In such circumstances, it is understandable that the
statements made by the applicant may have been considered shocking or
disturbing by the public. However, the Court reiterates that, subject
to paragraph 2 of Article 10, the freedom of expression is applicable
not only to “information” or “ideas” that are
favourably received or regarded as inoffensive or as a matter of
indifference, but also to those that offend, shock or disturb the
State or any sector of the population. Such are the demands of
pluralism, tolerance and broadmindedness without which there is no
“democratic society” (see Handyside v. the United
Kingdom, 7 December 1976, § 49, Series A no. 24).
Moreover,
the Court notes that it is an integral part of freedom of expression
to seek historical truth. At the same time, it is not the Court's
role to arbitrate the underlying historical issues which are part of
a continuing debate between historians that shapes opinion as to the
events which took place and their interpretation (see Chauvy and
Others, cited above, § 69). The Court accordingly considers
that it is not its task to settle the differences in opinions about
the historical facts relating to the Khojaly events. Therefore,
without aiming to draw any definitive conclusions in that respect,
the Court will limit itself to making the following observations, for
the purposes of its analysis in the present case. It appears that the
reports available from independent sources indicate that at the time
of the capture of Khojaly on the night of 25 to 26 February 1992
hundreds of civilians of Azerbaijani ethnic origin were reportedly
killed, wounded or taken hostage, during their attempt to flee the
captured town, by Armenian fighters attacking the town, who were
reportedly assisted by the 366th Motorised Rifle Regiment (see
paragraphs 60-62 above). However, apart from this aspect, there
appears to be a lack of either clarity or unanimity in respect of
certain other aspects and details relating to the Khojaly events. For
example, there are conflicting views as to whether a safe escape
corridor was provided to the civilians fleeing their town (see, for
example, the extracts from the Memorial report in paragraph 62
above). Likewise, there exist various opinions about the role and
responsibility of the Azerbaijani authorities and military forces in
these events, with some reports suggesting they could have done more
to protect the civilians or that their actions could have somehow
contributed to the gravity of the situation. Questions have arisen
whether the proper defence of the town had been organised and, if
not, whether this was the result of a domestic political struggle in
Azerbaijan. Having regard to the above, the Court considers that
various matters related to the Khojaly events still appear to be open
to ongoing debate among historians, and as such should be a matter of
general interest in modern Azerbaijani society. In this connection,
the Court also reiterates that it is essential in a democratic
society that a debate on the causes of acts of particular gravity
which may amount to war crimes or crimes against humanity should be
able to take place freely (see, mutatis mutandis, Lehideux
and Isorni, cited above, §§ 54-55).
Another
factor of particular importance for the Court's determination of the
present case is the vital role of “public watchdog” which
the press performs in a democratic society (see Goodwin v. the
United Kingdom, 27 March 1996, § 39, Reports
1996-II). Although it must not overstep certain bounds, in
particular in respect of the reputation and rights of others, its
duty is nevertheless to impart – in a manner consistent with
its obligations and responsibilities – information and ideas on
political issues and on other matters of general interest (see, among
many other authorities, De Haes and Gijsels v. Belgium, 24
February 1997, § 37, Reports 1997-I, and Colombani and
Others v. France, no. 51279/99, § 55, ECHR 2002-V).
The
Court will first assess the statements made by the applicant in “The
Karabakh Diary”, and thereafter proceed to assess the Internet
forum postings attributed to the applicant. As to “The Karabakh
Diary”, it is necessary to first have regard to the general
context and aim of this newspaper article. Having examined the
article, the Court considers that it was written in a generally
descriptive style and had the aim of informing Azerbaijani readers of
the realities of day-to-day life in the area in question. This, in
itself, constituted a matter of general interest, as there was not
much information of this type available to average members of the
public in the circumstances of the ongoing conflict and the public
were entitled to receive information about what was happening in the
territories over which their country had lost control in the
aftermath of the war. It also appears that the author attempted to
convey, in a seemingly unbiased manner, various ideas and views of
both sides of the conflict. It was in this context that the
statements which were ultimately held against the applicant were
made.
Having
regard to the passages containing the statements held against the
applicant (see paragraph 12 above), it is generally not very easy to
differentiate the reported speech attributable to other persons from
the remarks directly constituting the author's own point of view.
Specifically, the applicant stated that the forces attacking Khojaly
had left a corridor for the civilians to escape. He further noted
that, while they had been using this corridor for this purpose, some
of them had been led by Azerbaijani soldiers in another direction
where other Armenian units were located. He also stated that the
remainder of the escaping refugees were hit by artillery fire from
the Azerbaijani side. It appears that these were not the applicant's
own views, but that he was reporting what he had heard from other
persons (some unnamed Khojaly refugees whom he had allegedly met
earlier, and a representative of the Nagorno-Karabakh Armenians).
While he reported the statements of these interviewees, it does not
necessarily mean that he did so with the aim of
proving the truth of what was asserted in those statements; rather,
he merely conveyed other persons' opinions. However, it can be argued
that, as the topic progressed, the author began mingling his own
opinions with those of his sources, as is evidenced by phrases like
“I can say, fully convinced, that...”. Here, he
accepted that a corridor indeed existed and introduced a novel
suggestion that “it appears that the NFA battalions strived not
for the liberation of the Khojaly civilians but for more bloodshed on
their way to overthrow A. Mutalibov”. However, this statement,
whether taken alone or in conjunction with the earlier statements,
left much room for speculation as to what specifically the “NFA
battalions” had done to contribute to “more bloodshed”,
and did not contain any specific allegations as to any acts they had
carried out to this end.
It
must be noted in this context that it may appear that the narration
in the impugned portion of the article was rather erratic, as a
result of which many statements appear to be elusive, incomplete or
even lacking a logical connection with one another. It is at times
difficult to follow the author's train of thought and what
specifically he meant to say, especially for a reader who is not very
familiar with the various intricacies of the topic under discussion.
For example, after the statement that part of the refugees were led
by the Azerbaijani soldiers in the direction of Nakhichevanik, the
narration immediately jumps to discussing the other group of
refugees, so it does not clearly transpire what happened to the first
group next. It might have been implied that, having been led in
another direction (whether deliberately or not), the refugees had
been unable to escape through the designated corridor, but came under
enemy fire after they had approached unrelated enemy units which were
located near Nakhichevanik, while the other group walked into
friendly fire (whether deliberate or not). But none of the above was
unambiguously stated, and other interpretations are also possible. As
demonstrated by this example, the statements made and conclusions
reached in the article were rather scant, vague, unclearly worded and
open-ended. The Court notes that “The Karabakh Diary” did
not constitute a piece of investigative journalism focusing
specifically on the Khojaly events and considers that the applicant's
statements about these events were made rather in passing, parallel
to the main theme of the article. In this context, based on quite
limited information sources, the applicant advanced rather unclearly
worded ideas to the effect that certain Azerbaijani units had been
partly responsible for the plight of the Khojaly victims.
Accordingly, although the article contained remarks
that some of the Azerbaijani military units (referred to as “NFA
battalions”) had, to a certain degree, shared responsibility
with the perpetrators of the mass killings, it did not contain any
statements directly accusing the Azerbaijani military or specific
individuals of committing the massacre and deliberately killing their
own civilians, as such. As the role and responsibility of the
Azerbaijani authorities in either failing to prevent or contributing
to the Khojaly events is the subject of ongoing debate (see paragraph
87 above), the applicant as a journalist had a right under Article 10
to impart ideas concerning this matter. The Court notes, in this
connection, that journalistic freedom also covers possible recourse
to a degree of exaggeration, or even provocation (see, among other
authorities, Bladet Tromsø and Stensaas v. Norway [GC],
no. 21980/93, § 59, ECHR 1999 III). Even assuming that, in
view of the possible scarcity or questionable nature of the
applicant's information sources, his remarks in “The Karabakh
Diary” concerning the responsibility of some of the Azerbaijani
defenders of Khojaly might have been exaggerated, they nevertheless
fell well short of directly and specifically accusing them of
committing any war crimes.
As
to the remarks made in postings on the Internet forum of the
AzeriTriColor website which were attributed to the applicant, the
Court notes that the applicant denied making them. Nevertheless,
having regard to the entirety of the evidence examined by the
domestic courts in order to determine the applicant's authorship of
these postings, the Court notes that it appears to be quite
convincing. In such circumstances, the Court will accept that the
applicant's authorship of these statements had been proved beyond
reasonable doubt.
The
following specific statements were made in the forum postings: “...
part of the Khojaly inhabitants had been fired upon by our own
[troops]... Whether it was done intentionally or not is to be
determined by investigators ... [They were killed] not by [some]
mysterious [shooters], but by provocateurs from the NFA battalions
... [The corpses] had been mutilated by our own ...”. The Court
considers that these assertions were very specific in that they
accused unidentified “provocateurs” from “NFA
battalions” of shooting at their own civilians and mutilating
their bodies. The Court notes that the author has not supported these
statements with any evidence and has not relied on any specific
sources. These statements contained assertions which were different
from those made in “The Karabakh Diary”, in that they
accused some Azerbaijani fighters of killing some of the victims
(although perhaps not intentionally), and of deliberately mutilating
the corpses of victims. As such, they were not of the same nature as
mere hypothesising, as in “The Karabakh Diary”, about
Azerbaijani soldiers' possible responsibility for failure to prevent
large-scale bloodshed, based on the sourced information that an
escape corridor had existed and that the refugees had been prevented
from using it. In respect of these Internet forum postings, the
applicant has not claimed that either the Khojaly refugees or the
Armenian officials interviewed by him, who were his primary sources
in “The Karabakh Diary”, had ever specifically accused
the Azerbaijani military of mutilating the corpses of their own
civilians. In such circumstances, it could be argued that the
statements made in the Internet forum postings could not be taken as
an example of the “degree of exaggeration” or
“provocation” permissible in the exercise of journalistic
freedom.
In
this regard, the Court reiterates that the exercise of freedom of
expression carries with it duties and responsibilities, and the
safeguard afforded by Article 10 to journalists is subject to the
condition that they are acting in good faith in order to provide
accurate and reliable information in accordance with the ethics of
journalism (see, among other authorities, Radio France and Others
v. France, no. 53984/00, § 37, ECHR 2004-II, and Colombani
and Others, cited above, § 65). In the present case, it is
not clear whether the applicant intended to post these statements in
his capacity as a journalist providing information to the public, or
whether he simply expressed his personal opinions as an ordinary
citizen in the course of an Internet debate. Nevertheless, it is
clear that, by posting under the username “Eynulla Fatullayev”,
the applicant, being a popular journalist, did not hide his identity
and that he publicly disseminated his statements by posting them on a
freely accessible popular Internet forum, a medium which in modern
times has no less powerful an effect than the print media. The
disseminated statements did not constitute value judgments, but were
of a specific factual nature. While the truth of value judgments is
not susceptible to proof, the existence of facts can be demonstrated
(see De Haes and Gijsels, cited above, § 42). Moreover,
directly accusing specific individuals of a specific form of
misconduct entails an obligation to provide a sufficient factual
basis for such an assertion (see, mutatis mutandis, Mahmudov
and Agazade v. Azerbaijan,
no. 35877/04, § 45, 18 December 2008).
However,
the Court considers that, in the circumstances of the present case,
it is not required to reach any definitive conclusions as to whether
the above statements were supported by a sufficient factual basis or
whether they were objectively true or false, for the following
reasons. The Court stresses that the applicant was not convicted
merely for having disseminated the above statements. Indeed, he was
not held liable for the act of, per se, disseminating
allegedly revisionist statements concerning historical events.
Rather, the interference complained of in the present case took the
form of a criminal conviction based on a finding that the statements
disseminated by the applicant defamed specific individuals.
Therefore, having accepted that the statements in the Internet forum
postings were attributable to the applicant and that they were false
or unverified, it is necessary to determine whether the domestic
courts provided sufficient and relevant reasons for finding that
those statements damaged the reputation of those specific
individuals.
The
individuals in question were four Khojaly refugees and two former
soldiers who participated in the criminal proceedings in the capacity
of private prosecutors. They claimed that the statements made by the
applicant were slanderous and tarnished their honour and dignity.
Moreover, the two former soldiers claimed that, by stating that the
Azerbaijani soldiers had killed civilians and mutilated their
corpses, the applicant had directly and falsely accused them
personally of having committed grave crimes.
As
to the alleged defamation of the Khojaly refugees, the Court
considers that there was nothing in “The Karabakh Diary”
or the Internet forum postings to suggest that the applicant aimed to
deny the fact of the mass killing of the civilians or exculpate any
suspected actual perpetrators, be they Armenian fighters, personnel
of the 366th Regiment or any other individuals or military units.
None of the impugned statements could be interpreted as doubting the
gravity of the suffering inflicted on the Khojaly victims. While the
author blamed the “NFA battalions” of having shot at some
of the refugees and mutilated victims' bodies, it cannot be said that
this assertion was calculated to humiliate or debase the victims of
the Khojaly events or to somehow imply that their fate was less
unfortunate. On the contrary, the applicant expressed feelings of
grief and deep sorrow for the plight of the victims and the survivors
of what he referred to as the “Khojaly tragedy”. For
these reasons, the Court cannot agree with the domestic courts'
finding that the article contained any statements undermining the
dignity of the Khojaly victims and survivors in general and, more
specifically, the four private prosecutors who were Khojaly refugees.
As
to the alleged false accusation that the remaining two private
prosecutors had committed grave crimes, the Court notes that the
applicant did indeed make accusatory statements in respect of
unidentified “provocateurs” from “NFA battalions”.
Even assuming that these assertions lacked a sufficient factual
basis, the Court notes, firstly, that it is clear that these
statements did not appear to implicate the entire Azerbaijani army or
all of the Azerbaijani military units who fought in the region during
the war or even all of those who participated in the defence of
Khojaly during the battle of 25 to 26 February 1992. The statements
appeared to concern only a part of the town's defenders, referred to
as “NFA battalions”. Secondly, the Court notes that these
statements did not accuse any specific individuals by identifying
them by name or otherwise. In particular, neither of the two private
prosecutors who claimed to have fought in the Khojaly battle was
named or otherwise identified either in “The Karabakh Diary”
or in the Internet forum postings. No reasoning was advanced by the
plaintiffs or by the domestic courts to show that these two
individuals could be somehow identified as, or considered otherwise
representative of, the “provocateurs” implicated in the
applicant's statements. In such circumstances, the Court considers
that it has not been convincingly established that the applicant's
statements directly accused the two plaintiffs of having personally
committed grave crimes.
Having
regard to the above, the Court considers that, although “The
Karabakh Diary” might have contained certain exaggerated or
provocative assertions, the author did not cross the limits of
journalistic freedom in performing his duty to impart information on
matters of general interest. On the other hand, while certain
assertions in the Internet forum postings attributed to the applicant
might have arguably lacked sufficient factual basis, it was not
convincingly shown that they were defamatory in respect of the
specific individuals acting as private prosecutors in the applicant's
case. In such circumstances, the Court finds that the reasons given
by the domestic courts in support of the applicant's conviction
cannot be regarded as relevant and sufficient and that, therefore,
his conviction on charges of defamation did not meet a “pressing
social need”.
Moreover,
in any event, even assuming that the interference met a “pressing
social need”, the Court considers that the requirement of
proportionality was not satisfied in the present case.
The Court reiterates that the nature and severity of
the penalties imposed are factors to be taken into account when
assessing the proportionality of an interference with the freedom of
expression guaranteed by Article 10 (see, for example, Ceylan v.
Turkey [GC], no. 23556/94, § 37, ECHR 1999-IV; Skałka
v. Poland, no.
43425/98, §§ 41-42, 27 May 2003; and Pedersen and
Baadsgaard v. Denmark [GC], no. 49017/99, § 93, ECHR
2004-XI). The Court must also exercise the utmost caution where the
measures taken or sanctions imposed by the national authorities are
such as to dissuade the press from taking part in the discussion of
matters of legitimate public concern (see Cumpǎnǎ and
Mazǎre, cited above, § 111). Although the Contracting
States are permitted, or even obliged, by their positive obligations
under Article 8 of the Convention to regulate the exercise of freedom
of expression so as to ensure adequate protection by law of
individuals' reputations (see Pfeifer v. Austria, no.
12556/03, § 35, ECHR 2007 XII), they must not do so in a
manner that unduly deters the media from fulfilling their role of
informing the public on matters of general public interest.
Investigative journalists are liable to be inhibited from reporting
on matters of general interest if they run the risk, as one of the
standard sanctions imposable for unjustified attacks on the
reputation of private individuals, of being sentenced to
imprisonment. A fear of such a sanction inevitably has a chilling
effect on the exercise of journalistic freedom of expression (see
Mahmudov and Agazade, cited above, § 49).
In
the instant case, the applicant was sentenced to two years and six
months' imprisonment. This sanction was undoubtedly very severe,
especially considering that the applicant had already been sued for
the exact same statements in the civil proceedings and, as a
consequence, had paid a substantial amount in damages. The Court
reiterates that, although sentencing is in principle a matter for the
national courts, the imposition of a prison sentence for a press
offence will be compatible with journalists' freedom of expression as
guaranteed by Article 10 of the Convention only in exceptional
circumstances, notably where other fundamental rights have been
seriously impaired, as, for example, in cases of hate speech or
incitement to violence (ibid., § 50; see also Cumpǎnǎ
and Mazǎre, cited above, § 115). The Court considers
that the circumstances of the instant case disclose no justification
for the imposition of a prison sentence on the applicant.
In
view of the above, the Court finds that the interference with the
applicant's exercise of his right to freedom of expression cannot be
considered “necessary in a democratic society”.
There
has accordingly been a violation of Article 10 of the Convention in
respect of the applicant's first criminal conviction.
2. Second criminal conviction
(a) The parties' submissions
The
Government submitted that the applicant's conviction in the second
set of criminal proceedings had also been prescribed by law and
justified by “the interests of public safety”.
The
Government agreed with the domestic courts' assessment of the
statements made by the applicant in “The Aliyevs Go to War”.
They noted that this article, which concerned possible attacks on
various facilities in Azerbaijan, had appeared at a time of rising
tension between Iran and a number of other members of the
international community, which had led to widespread reports about
possible military operations against Iran, Azerbaijan's geographical
neighbour. In that context, the applicant had published a number of
unverified and inaccurate statements of fact. He had failed to comply
with the duties and responsibilities which went hand in hand with
journalistic freedom and had failed to act in good faith and in
compliance with the ethics of journalism in order to provide accurate
and reliable information. The information published by the applicant
had been obtained from various, sometimes unidentified, sources which
the applicant had not verified by independent research.
For
the above reasons, the Government concluded that the domestic courts'
decisions had been based on striking a balance between the interests
of public safety and the applicant's right protected by Article 10.
The
applicant observed that the Government's submissions concerning this
part of the complaint were “superficial and perfunctory”,
in the light of the seriousness of the offences of which he had been
convicted as a result of merely publishing an analytical article.
The
applicant submitted that, indeed, at the time when the article had
been published there had been tension in the region as a result of
the deterioration in US-Iranian relations. The worsening relations
between Iran and the US and the probability of a war between these
States were not the product of the applicant's imagination; they
could be deduced from numerous statements by high-ranking US and
Iranian officials and politicians, including the Presidents of those
States. In their interviews at the time, Iranian officials had
unambiguously stated that, in the event of a US attack on Iran,
various facilities in Azerbaijan would be subject to an Iranian
counter-attack.
“The
Aliyevs Go to War” was analytical in nature and derived
information from many other articles concerning this matter,
published in various media outlets. The applicant noted that the
subject matter of the article was clearly a matter of public concern.
The fact that Azerbaijan was an active member of the US-led
“anti-terror” coalition and had already sent peacekeeping
forces to Iraq and Afghanistan reinforced the probability of
Azerbaijan's involvement in the US-Iranian war, if it were to take
place. The applicant noted that “hundreds of similar articles”,
reflecting opinions and conclusions concerning the possibility of an
attack on Azerbaijan, had been published both before and after the
publication of his article. In support of this, the applicant
submitted several articles published by local and foreign print media
and on Internet news sites in 2006 and 2007 (including Zerkalo,
Nash Vek, Russian Newsweek, Moscow News and
Kavkazskiy Uzel). All of these articles discussed Azerbaijan's
geopolitical role in the context of US-Iranian relations and, on the
basis of several remarks by Iranian officials, speculated that, in
the event of a US-Iranian war, it was likely that Azerbaijan would
also be involved and that Iran could even attack certain strategic
facilities in Azerbaijani territory, such as petroleum and gas
pipelines and airports.
Moreover,
the applicant noted that his article had merely criticised the
political decisions of the Government, including the authorities'
personnel policies in the southern region of the country, and had
suggested that, by appointing officials from outside the region to
governing posts, the central authorities were alienating the region's
local population, consisting largely of the Talysh minority. The
article touched upon the difficult social and economic situation in
this region which, coupled with potential separatist tendencies, were
relevant considerations in the context of a possible war with
neighbouring Iran. The applicant maintained that the publication
of this article had been the result of his obligation to provide the
newspaper's readers with comprehensive information about the events
taking place in the country and in the region.
The
applicant noted that he had been convicted under Articles 214.1 and
283 of the Criminal Code, despite the fact that he had committed none
of the acts proscribed by those provisions. He had neither been
involved in any terrorist activities, nor had he incited ethnic
hostility. He had not aimed to create fear among the population or
exert pressure on State authorities by committing or threatening to
commit terrorist acts. He had merely published an analysis of
possible future events, based on the information he had obtained from
numerous other sources. The applicant also noted that the charges of
tax evasion against him had been fabricated and that this should also
be regarded as an interference with his freedom of expression.
The
applicant reiterated that the actual, underlying reason for his
conviction was his journalistic activity in general, as he was a
harsh critic of the Government's policies, corruption and violations
of citizens' civil and political rights.
(b) The Court's assessment
The
applicant's conviction for publication of the second article
indisputably amounted to an interference with the exercise of his
right to freedom of expression. The Court accepts that this
interference was prescribed by law; in particular, by Articles 214.1
and 283.2.2 of the Criminal Code. For the purposes of the following
analysis, the Court will also accept the Government's submission that
the interference pursued the legitimate aim of maintaining public
safety. Accordingly, it remains to be determined whether the
interference was “necessary in a democratic society”.
In this connection, the Court reiterates the general
principles on the necessity of restrictions on the freedom of
expression and its own task in exercising its supervisory function
under Article 10 § 2 of the Convention (see paragraphs 82-84
above), as well as the general principles concerning the role of the
press in a democratic society (see paragraph 88 above). Specifically,
the Court again stresses that there is little scope under
Article 10 § 2 for restrictions on political speech or
on debate on questions of public interest. The Court also reiterates
that the limits of permissible criticism are wider with regard to the
government than in relation to a private citizen or even a
politician. In a democratic system the actions or omissions of the
government must be subject to the close scrutiny not only of the
legislative and judicial authorities but also of public opinion.
Moreover, the dominant position which the government occupies makes
it necessary for it to display restraint in resorting to criminal
proceedings when replying even to the unjustified attacks and
criticisms of its adversaries, particularly where other means are
available (see Incal v. Turkey, 9 June 1998, § 54,
Reports 1998 IV). Furthermore, where a publication cannot
be categorised as inciting to violence or instigating ethnic hatred,
Contracting States cannot restrict, with reference to maintaining
public order and safety, the right of the public to be informed of
matters of general interest, by bringing the weight of the criminal
law to bear on the media (see Sürek and Özdemir v.
Turkey [GC], nos. 23927/94 and 24277/94, § 63, 8 July 1999,
and Erdoğdu v. Turkey, no. 25723/94, § 71, ECHR
2000 VI).
The
Court notes that “The Aliyevs Go to War” was an
analytical article focusing on Azerbaijan's specific role in the
greater picture of the dynamics of international politics relating to
US-Iranian relations, which were relevant at the time of the
publication of the article. As such, the publication was part of a
political debate on a matter of general and public concern. The Court
notes in this connection that it has been its constant approach to
require very strong reasons for justifying restrictions on political
speech, since broad restrictions imposed in individual cases would
undoubtedly affect respect for the freedom of expression in general
in the State concerned (see Feldek v. Slovakia, no.
29032/95, § 83, ECHR 2001 VIII, and Karman v.
Russia, no. 29372/02, § 36, 14 December 2006).
The
Court observes, more specifically, that the applicant criticised the
foreign and domestic political moves made by the Azerbaijani
Government, noting that the country's continued close alliance with
the US was likely to lead to Azerbaijan's involvement in a possible
US-Iranian war, which at the time of the publication in question
appeared to be a hot topic of the day and was seriously discussed by
various analysts as a probable scenario in which a confrontation
between the US and Iran could develop. The author further
proposed a hypothetical scenario of such a war, according to which
Iran would respond by bombing a number of facilities on the territory
of Azerbaijan, which was allegedly considered by Iran to be one of
the allies of the US in the region. The Court notes that, indeed, the
applicant was not the only one to comment on the probability of this
scenario, as a number of other media sources had also suggested
during that period that, in the event of a war, Azerbaijan was also
likely to be involved and, referring to specific statements by
Iranian officials, speculated about possible specific targets for
Iranian attacks, including the Baku Tbilisi Ceyhan pipeline
and various government facilities.
Arguably,
the list of such “targets” provided by the applicant was
longer and more detailed. However, in the Court's view, even assuming
that the applicant's sources concerning the alleged existence of such
a “target list” had not been fully verified, the fact
that the applicant published this list, in itself, neither increased
nor decreased the chances of a hypothetical Iranian attack. Moreover,
it has never been claimed by the domestic authorities that, by
publishing this list, the applicant revealed any State secrets or
undermined any efforts of the national military defence authorities.
In the context of the article as a whole, the inclusion of this
“target list” could be construed simply as an attempt to
convey to the readers a more dramatic picture of the specific
consequences of the country's possible involvement in a possible
future war.
In
this connection, the Court cannot accept the Government's argument
that the applicant failed to support his “statements of fact”
with references to reliable sources. Firstly, as mentioned above,
similar statements had been made in numerous other publications.
Secondly, the applicant's article contained the applicant's opinions
about hypothetical scenarios of possible future events and, as such,
those opinions were not susceptible of proof. Any opinions about
future events involve, by their nature, a high degree of speculation.
Whether the scenarios proposed by the applicant were likely or
unlikely to happen was a matter of public debate, and any reasonable
reader could be expected to understand the hypothetical nature of the
applicant's remarks about the possible course of events in a future
war.
The
Court observes that the scope of the interference in the present case
appeared to extend to the publication in its entirety. In particular,
the domestic courts found inter alia that, by criticising
Azerbaijan's support for the “anti-Iranian” UN resolution
and writing about the possibility of Iran bombing certain targets in
Azerbaijan, the applicant had committed the offence of threat of
terrorism under Article 214.1 of the Criminal Code. The Court notes
that it is not for it to rule on the constituent elements of the
offences under domestic law of terrorism and threat of terrorism, by
reviewing whether the corpus delicti of “threat of
terrorism” actually arose from the applicant's actions. It is
in the first place for the national authorities, notably the courts,
to interpret and apply domestic law (see, among many other
authorities, Lehideux and Isorni, cited above, § 50).
The Court's task is merely to review under Article 10 the decisions
they delivered pursuant to their power of appreciation. In so doing,
it must satisfy itself that the national authorities based their
decisions on an acceptable assessment of the relevant facts (see
paragraph 84 above; see also Incal, cited above, § 48).
Having
regard to the domestic courts' assessment of the facts, the Court
notes that, based on a few (seemingly random) persons' testimonies,
they found that the applicant's statements were aimed at “frightening
the population” and had created panic among the public. In this
regard, the Court reiterates that the freedom of expression is
applicable not only to “information” or “ideas”
that are favourably received or regarded as inoffensive or as a
matter of indifference, but also to those that offend, shock or
disturb the State or any sector of the population (see paragraph 86
above). It was the applicant's task, as a journalist, to impart
information and ideas on the relevant political issues and express
opinions about possible future consequences of specific decisions
taken by the Government. The Court considers that, in doing so, he
did not overstep any bounds set by Article 10 § 2
of the Convention.
Furthermore,
the Court notes that the domestic courts characterised the
applicant's statements as threatening the Government with destruction
of public property and with acts endangering human life, with the aim
of exerting influence on the Government to refrain from taking
political decisions required by national interests. However, having
regard to the circumstances of the case, the Court cannot but
conclude that the domestic courts' finding that the applicant
threatened the State with terrorist acts was nothing but arbitrary.
The applicant, as a journalist and a private individual, clearly was
not in a position to influence any of the hypothetical events
discussed in the article and could not exercise any degree of control
over any possible decisions by the Iranian authorities to attack any
facilities in Azerbaijani territory. Neither did the applicant voice
any approval of any such possible attacks, or argue in favour of
them. As noted above, the Court considers that the article had the
aim of informing the public of possible consequences (however likely
or unlikely they might seem) of the Government's foreign policy and,
more specifically, criticising the latter for making certain
decisions, such as supporting the “anti-Iranian” UN
Security Council Resolution. However, there is nothing in the article
to suggest that the applicant's statements were aimed at threatening
or “exerting influence” on the Government by any illegal
means. In fact, the only means by which the applicant could be said
to have “exerted influence” on the State authorities in
the present case was by exercising his freedom of expression, in
compliance with the bounds set by Article 10, and voicing his
disagreement with the authorities' political decisions, as part of a
public debate which should take place freely in any democratic
society.
In
view of the above, the Court finds that the domestic courts
arbitrarily applied the criminal provisions on terrorism in the
present case. Such arbitrary interference with the freedom of
expression, which is one of the fundamental freedoms serving as the
foundation of a democratic society, should not take place in a state
governed by the rule of law.
Similarly,
the Court is not convinced by the reasons advanced by the domestic
courts to justify the applicant's conviction under Article 283.2.2
of the Criminal Code. It notes that, in the context of discussing the
Government's policies in connection with relations with the US and
Iran, the applicant voiced an opinion that these policies, coupled
with the central authorities' alleged mistakes in domestic
administration, could result in political unrest among the
inhabitants of the country's southern regions. The author mentioned
that those regions faced a number of social and economic problems,
such as unemployment and rising drug use. He also noted that the
local population had expressed discontent with the central
authorities' tendency to appoint people from outside the region to
official positions within the regional administration.
In
the Court's view, the above issues raised in the relevant passages of
the applicant's article could be considered a matter of legitimate
public concern which the applicant was entitled to bring to the
public's attention through the press. The mere fact that he discussed
the social and economic situation in regions populated by an ethnic
minority and voiced an opinion about possible political tension in
those regions cannot be regarded as incitement to ethnic hostility.
Although the relevant passages may have contained certain categorical
and acerbic opinions and a certain degree of exaggeration in
criticising the central authorities' alleged treatment of the Talysh
minority, the Court considers nevertheless that they contained no
hate speech and could not be said to encourage inter-ethnic violence
or to disparage any ethnic group in any way.
Having
regard to the above, the Court finds that the domestic courts failed
to provide any relevant reasons for the applicant's conviction on
charges of threat of terrorism and incitement to ethnic hostility.
The
Court also considers that the gravity of the interference in the
present case is exacerbated by the particular severity of the
penalties imposed on the applicant. Specifically, he was sentenced to
eight years' imprisonment on the charge of threat of terrorism and to
three years' imprisonment on the charge of incitement to ethnic
hostility, which resulted, together with previous sentences, in a
merged sentence of eight years and six months' imprisonment. The
circumstances of the case disclose no justification for the
imposition of a prison sentence on the applicant. The Court considers
that both the applicant's conviction and the particularly severe
sanction imposed were capable of producing a chilling effect on the
exercise of journalistic freedom of expression in Azerbaijan and
dissuading the press from openly discussing matters of public
concern.
In
sum, the Court considers that the domestic courts overstepped the
margin of appreciation afforded to them for restrictions on debates
on matters of public interest. The applicant's conviction did not
meet a “pressing social need” and was grossly
disproportionate to any legitimate aims invoked. It follows that the
interference was not “necessary in a democratic society”.
In
view of this finding, the Court considers it unnecessary to examine
whether the applicant's conviction for a tax offence could also be
linked to the interference with his freedom of expression.
There
has accordingly been a violation of Article 10 of the Convention in
respect of the applicant's second criminal conviction.
II. ALLEGED VIOLATIONS OF ARTICLE 6 § 1 OF THE CONVENTION
Firstly,
the applicant complained that, in the first set of criminal
proceedings, he had not received a fair hearing by an impartial
tribunal, because Judge I. Ismayilov, who had heard the criminal
case, was the same judge who had previously examined the civil action
against him. Secondly, he complained that he had not been tried
by a “tribunal established by law”, because the term of
office of the Yasamal District Court judges had expired prior to his
trial, and that, in both sets of criminal proceedings, the domestic
courts were not independent from the executive. Article 6 § 1 of
the Convention provides as follows:
“In the determination of ... any criminal charge
against him, everyone is entitled to a fair ... hearing ... by an
independent and impartial tribunal established by law.”
A. “Impartial tribunal”
1. The parties' submissions
The
Government submitted that the fact that the same judge had examined a
civil claim against a person and later examined a criminal case
against that same person did not, in itself, lead to the conclusion
that the judge was not independent and impartial.
The
applicant submitted that the judge who had already examined specific
allegations against him in the context of a civil action could not
have an impartial position when examining the same allegations in
subsequent criminal proceedings. The applicant maintained that, in
the criminal proceedings, Judge Ismayilov had routinely rejected his
“lawful requests” and had “by all possible means
defended” the position of the private prosecutors.
2. The Court's assessment
The
Court notes that this complaint is not manifestly ill-founded within
the meaning of Article 35 § 3 of the Convention. It further
notes that it is not inadmissible on any other grounds. It must
therefore be declared admissible.
The
Court further reiterates that the existence of impartiality for the
purposes of Article 6 § 1 must be determined according to a
subjective test, that is, on the basis of the personal conviction of
a particular judge in a given case, and also according to an
objective test, that is, ascertaining whether the judge offered
guarantees sufficient to exclude any legitimate doubt in this respect
(see Fey v. Austria, 24 February 1993, § 28, Series A no.
255 A). As to the subjective test, the personal
impartiality of a judge must be presumed until there is proof to the
contrary (see Hauschildt v. Denmark, 24 May 1989, §
47, Series A no. 154). The mere fact that the judge rejected all or
most of the applicant's requests does not constitute such proof.
Accordingly, the objective test should be applied in the present
case.
Under
the objective test, it must be determined whether, quite apart from
the judge's personal conduct, there are ascertainable facts which may
raise doubts as to his impartiality. In this respect even appearances
may be of a certain importance. What is at stake is the confidence
which the courts in a democratic society must inspire in the public
and, above all, in the accused. This implies that in deciding whether
in a given case there is a legitimate reason to fear that a
particular judge lacks impartiality, the standpoint of the accused is
important but not decisive. What is decisive is whether this fear can
be held to be objectively justified (see Fey, cited above, §
30).
The
Court notes, inter alia, that the nature of liability under
civil law is different from that under criminal law, that different
standards of proof apply in civil and criminal cases, that a criminal
conviction does not preclude a finding of civil liability arising
from the same facts and that, conversely, the existence of civil
liability does not necessarily entail a finding of guilt under
criminal law in respect of the same actions by the defendant. For
these reasons, the Court considers that a situation where the same
judge examines the questions of both civil liability and criminal
liability arising from the same facts does not necessarily affect the
judge's impartiality. Nevertheless, the Court notes that whether the
accused's fear of a lack of impartiality can be considered to be
objectively justified depends on the special features of each
particular case (see Hauschildt, cited above, § 49).
The
Court considers that, in the assessment of the special features of
the present case, importance should be attached to the fact that the
proceedings in question concerned alleged defamation of private
individuals. Owing to this specific subject matter of the
proceedings, the present case is not necessarily comparable to other
situations where both criminal and civil liability may arise from the
same facts. The Court further notes that the applicant's fear of a
lack of impartiality was based on the fact that Judge Ismayilov dealt
with the questions of his civil and criminal liability not
simultaneously, but in two separate sets of proceedings, with the
civil case preceding the criminal case. The Court notes that both
sets of proceedings concerned exactly the same set of allegedly
defamatory statements made by the applicant. Ms Chaladze was the
plaintiff in the first set of proceedings, while in the second set of
proceedings she was a representative of several Khojaly refugees
acting as private prosecutors. She made essentially the same
submissions in both sets of proceedings. In each set of proceedings,
in order to determine whether the applicant was liable under either
the civil or criminal law on defamation, the judge had to satisfy
himself, inter alia, that the statements made by the applicant
were “false” (or unproven) and that, as such, they
tarnished the dignity of the survivors of the Khojaly events. In
doing so, the judge was called upon to assess essentially the same or
similar evidentiary material. It appears that, under criminal law on
defamation, the judge had to additionally establish the element of
criminal intent by determining whether the applicant “knowingly”
disseminated defamatory statements (see paragraph 47 above).
Nevertheless, the Court considers that, having decided the civil case
against the applicant, the judge had already given an assessment to
the applicant's statements and reached a conclusion that they
constituted false information tarnishing the dignity of Khojaly
survivors. In such circumstances, where the applicant was
subsequently prosecuted under criminal law on defamation, doubts
could be raised as to the appearance of impartiality of the judge who
had already pronounced his opinion concerning the same allegedly
defamatory statements made by the applicant. Accordingly, the Court
considers that, in the light of the special features of this
particular case, the applicant's fear of the judge's lack of
impartiality could be considered as objectively justified.
There
has accordingly been a violation of Article 6 § 1 of the
Convention in this respect.
B. “Independent ... tribunal established by law”
1. The parties' submissions
The
Government noted that Judge Ismayilov had indeed been appointed on 2
September 2000 for a five-year term. Under the Law on Courts and
Judges, effective at the material time, his term had been due to
expire on 3 September 2005. However, Law No. 817-IIQD of 28 December
2004, which entered into force on 30 January 2005, had introduced
amendments to the Law on Courts and Judges which concerned, inter
alia, new provisions regulating the procedure for selection and
appointment of judges and their terms of office. In accordance with
the Transitional Provisions of the Law No. 817-IIQD, the terms of
office of all judges appointed before 1 January 2005 had been
extended until the date on which new judges were appointed to the
relevant courts pursuant to the new amendments to the Law on Courts
and Judges. New judges had been appointed to the Yasamal District
Court on 28 July 2007. Until that date, the old judges of the court,
including Judge Ismayilov, had carried out their judicial functions
in accordance with Law No. 817-IIQD. Therefore, the applicant's case
had been heard by a “tribunal established by law”.
Lastly,
the Government submitted that the applicant's allegations concerning
the domestic courts' lack of independence were unsubstantiated.
The
applicant reiterated his complaints. He also challenged the “quality”
of Law No. 817-IIQD. He noted that, coupled with the enactment of the
new Law on the Judicial Legal Council, which had given the Judicial
Legal Council substantial powers in the process of selecting judges,
the Transitional Provisions of Law No. 817-IIQD made the judges
“fully dependent on the Judicial Legal Council”, because
their subsequent reappointment depended on the latter.
2. The Court's assessment
The
Court reiterates that the object of the term “established by
law” in Article 6 of the Convention is to ensure “that
the judicial organisation in a democratic society does not depend on
the discretion of the executive, but that it is regulated by law
emanating from Parliament” (see Gurov v. Moldova,
no. 36455/02, § 34, 11 July 2006). The phrase “established
by law” covers not only the legal basis for the very existence
of a “tribunal” but also the composition of the bench in
each case (see Posokhov v. Russia, no. 63486/00, §
39, ECHR 2003 IV).
The
Court notes that, in the present case, Law No. 817-IIQD introduced
amendments to the domestic law regulating, inter alia, the
procedure of appointment and terms of office of judges. During the
period of transition to this reformed system and pending the
finalisation of new appointment procedures, the terms of office of
all judges appointed prior to 1 January 2005 were extended in
accordance with the Transitional Provisions of Law No. 817-IIQD,
ostensibly with the purpose of ensuring the uninterrupted functioning
of the judicial system. Thus, the term of office of Judge Ismayilov
had been extended by virtue of a parliamentary enactment before the
date when it was due to expire under the law effective prior to the
reform and, contrary to what the applicant claimed, did not expire
until 28 July 2007, well after the examination of the applicant's
case in the Yasamal District Court had been completed. Accordingly,
in view of the fact that the extension of Judge Ismayilov's term of
office had been necessitated by the transition to new rules on the
appointment and terms of office of judges, that he had initially been
appointed in accordance with all the requirements of the Law on
Courts and Judges (contrast Posokhov, cited above, § 43,
and Fedotova v. Russia, no. 73225/01, §§ 41-42, 13
April 2006), and that the extension of his term of office was
regulated by a law emanating from Parliament (contrast Gurov,
cited above, § 37), the Court considers that the applicant was
tried by a “tribunal established by law”.
In
so far as the applicant claimed that the extension of the judges'
terms of office for an indefinite “transitional” period
compromised their independence vis-à-vis the executive
authorities (whose representatives formed part of the Judicial Legal
Council, vested with the task of selecting candidates for judicial
office) during that period, the Court notes that the applicant
appeared to be suggesting that certain executive authorities (which
the applicant failed to identify precisely) were somehow interested
in having him convicted and, therefore, had unduly influenced Judge
Ismayilov, whose independence was allegedly compromised following the
enactment of Law No. 817-IIQD. However, the Court notes that the
first set of criminal proceedings against the applicant was
instituted not by the State, but by private persons under the private
prosecution procedure. In any event, the Court notes that the
material in its possession does not contain sufficient evidence in
support of the applicant's allegations of undue pressure being
exerted on the domestic courts by the executive authorities.
Likewise, there is insufficient evidence of the alleged lack of
independence of the domestic courts in the second set of criminal
proceedings.
It
follows that this part of the application is manifestly ill-founded
and must be rejected in accordance with Article 35 §§ 3 and
4 of the Convention.
III. ALLEGED VIOLATION OF ARTICLE 6 § 2 OF
THE CONVENTION
The
applicant complained that the statement made by the Prosecutor
General to the press on 31 May 2007 (see paragraphs 36 and 37 above)
amounted to an infringement of his right to the presumption of
innocence secured in Article 6 § 2 of the Convention, which
provides as follows:
“Everyone charged with a criminal offence shall be
presumed innocent until proved guilty according to law.”
A. Admissibility
1. The parties' submissions
The
Government submitted that the applicant had not exhausted all the
available domestic remedies in respect of this complaint. Firstly,
they noted that, pursuant to Articles 449-451 of the CCrP, the
applicant could have lodged with the supervising court a complaint
concerning the “procedural steps or decisions of the
prosecuting authority”, whereby he could have challenged the
Prosecutor General's statements to the press. Secondly, the applicant
could have alleged a violation of his presumption of innocence by
bringing a separate court action under Article 147 of the Criminal
Code or Chapter 27 of the CCP.
The
applicant submitted that the remedies mentioned by the Government
were ineffective.
2. The Court's assessment
The Court reiterates that the purpose of the
domestic-remedies rule in Article 35 § 1 of the
Convention is to afford the Contracting States the opportunity of
preventing or putting right the violations alleged before they are
submitted to the Court. However, the only remedies to be exhausted
are those that relate to the breaches alleged and that, at the same
time, are available and sufficient. The existence of such remedies
must be sufficiently certain not only in theory but also in practice,
failing which they will lack the requisite accessibility and
effectiveness; it falls to the respondent State to establish that
these various conditions are satisfied (see Vernillo v. France,
20 February 1991, § 27, Series A no. 198). The rule of
exhaustion of domestic remedies must be applied with some degree of
flexibility and without excessive formalism. This rule is neither
absolute nor capable of being applied automatically. For the purposes
of reviewing whether it has been observed, it is essential to have
regard to the circumstances of the individual case. This means,
amongst other things, that the Court must take realistic account not
only of the existence of formal remedies in the legal system of the
Contracting Party concerned, but also of the general context in which
they operate, as well as the personal circumstances of the applicant
(see Akdivar and Others v. Turkey, 16 September 1996, §
69, Reports 1996 IV).
As
to the Government's argument that the applicant had failed to make
use of the procedure specified in Articles 449-451 of the CCrP, the
Court notes that the relevant provisions concern the possibility of
lodging a complaint against “procedural steps or decisions”
of the prosecuting authorities. In the present case, the impugned
statements were made by the Prosecutor General not in the context of
the criminal proceedings themselves, but by way of a statement to the
press. Therefore, the Court is not convinced that this statement to
the press constituted a “procedural step” or “procedural
decision” taken in the context of the relevant criminal
proceedings, and the Government have not demonstrated by any evidence
(such as court decisions in similar cases) that it qualified as such
within the meaning of Articles 449-451 of the CCrP.
Likewise, the Court is not convinced by the
Government's argument that the applicant had failed either to
institute separate criminal proceedings accusing the Prosecutor
General of defamation under Article 147 of the Criminal Code, or
to bring a separate civil lawsuit complaining of a violation of his
rights and obligations. The Court notes that, in the present case,
the applicant specifically complained to the first instance and
higher courts about the Prosecutor General's statements and alleged a
violation of his right under Article 6 § 2 of the Convention.
His complaints under the Convention were summarily rejected. In this
connection, the Court reiterates that an individual is not required
to try more than one avenue of redress when there are several
available. It is for the applicant to select the legal remedy that is
most appropriate in the circumstances of the case (see, among other
authorities, Airey v. Ireland, 9 October 1979, § 23,
Series A no. 32, and Boicenco v. Moldova, no. 41088/05, §
80, 11 July 2006). The Government have not contested the
effectiveness of the avenue of redress which the applicant tried in
the present case, namely raising the issue of the presumption of
innocence before the courts called upon to determine the criminal
charges against him. Even assuming that the remedies suggested by the
Government were capable of providing adequate redress, the Court
considers that, having raised the issue of the presumption of
innocence in the context of the criminal proceedings in question, the
applicant should not be required to embark on another attempt to
obtain redress by lodging a separate defamation claim under criminal
law or bringing a civil action for damages (see, mutatis mutandis,
Hajibeyli v. Azerbaijan, no. 16528/05, § 43, 10 July
2008).
For
these reasons, the Court dismisses the Government's objections as to
the exhaustion of domestic remedies.
Moreover,
the Court notes that Article 6 § 2 applies to persons “charged
with a criminal offence”. At the time of the Prosecutor
General's interview to the press of 31 May 2007, the criminal
investigation under Article 214.1 of the Criminal Code had already
been instituted by the MNS on 16 May 2007, and the applicant had been
transferred to the MNS detention facility on 29 May 2007 pending the
Sabail District Court's decision to remand him in custody. Although
the applicant had not been formally indicted until 3 July 2007, his
transfer to the MNS detention facility formed part of the
investigation commenced on 16 May 2007 by the investigation
department of the MNS and thus made him a person “charged with
a criminal offence” within the meaning of Article 6 § 2.
The Prosecutor General's remarks, made in parallel with the MNS
investigation, were explained by the existence of that investigation
and had a direct link with it (compare Allenet de Ribemont v.
France, 10 February 1995, § 37, Series A no. 308).
Therefore, Article 6 § 2 of the Convention applies in
this case.
The
Court further notes that this complaint is not otherwise manifestly
ill-founded within the meaning of Article 35 § 3 of the
Convention and is not inadmissible on any other grounds. It must
therefore be declared admissible.
B. Merits
1. The parties' submissions
The
Government noted that Article 6 § 2 of the Convention
could not prevent the authorities from informing the public, with all
the necessary discretion and circumspection, about criminal
investigations in progress. They submitted that the applicant's
presumption of innocence had not been violated in the present case.
They noted that the Prosecutor General's comments had not depicted
the applicant as a criminal. The Prosecutor General had simply
commented on the reasons for instituting a criminal case and informed
the public that an investigation was being conducted.
The
applicant reiterated his complaint.
2. The Court's assessment
The
Court reiterates that Article 6 § 2, in its relevant
aspect, is aimed at preventing the undermining of a fair criminal
trial by prejudicial statements made in close connection with those
proceedings. The presumption of innocence enshrined in paragraph 2 of
Article 6 is one of the elements of the fair criminal trial that is
required by paragraph 1 (see Allenet de Ribemont, cited
above, § 35). It not only prohibits the premature
expression by the tribunal itself of the opinion that the person
“charged with a criminal offence” is guilty before he has
been so proved according to law (see Minelli v. Switzerland,
25 March 1983, § 38, Series A no. 62), but also covers
statements made by other public officials about pending criminal
investigations which encourage the public to believe the suspect
guilty and prejudge the assessment of the facts by the competent
judicial authority (see Allenet de Ribemont, cited above, §
41, and Daktaras v. Lithuania, no. 42095/98, §§ 41-43,
ECHR 2000-X). The Court stresses that Article 6 § 2
cannot prevent the authorities from informing the public about
criminal investigations in progress, but it requires that they do so
with all the discretion and circumspection necessary if the
presumption of innocence is to be respected (see Allenet de
Ribemont, cited above, § 38).
It
has been the Court's consistent approach that the presumption of
innocence will be violated if a judicial decision or a statement by a
public official concerning a person charged with a criminal offence
reflects an opinion that he is guilty before he has been proved
guilty according to law. It suffices, even in the absence of any
formal finding, that there is some reasoning suggesting that the
court or the official regards the accused as guilty. A fundamental
distinction must be made between a statement that someone is merely
suspected of having committed a crime and a clear declaration, in the
absence of a final conviction, that an individual has committed the
crime in question. The Court has consistently emphasised the
importance of the choice of words by public officials in their
statements before a person has been tried and found guilty of a
particular criminal offence (see Khuzhin and Others v. Russia,
no. 13470/02, § 94, 23 October 2008, with further references).
Whether a statement of a public official is in breach of the
principle of the presumption of innocence must be determined in the
context of the particular circumstances in which the impugned
statement was made (see Butkevičius v. Lithuania, no.
48297/99, § 49, ECHR 2002 II).
The
Court notes that in the present case the impugned statement was made
by the Prosecutor General in an interview to the press, in a context
independent of the criminal proceedings themselves. The Court
acknowledges that the fact that the applicant was a well-known
journalist required the State officials, including the Prosecutor
General, to keep the public informed of the alleged offence and the
ensuing criminal proceedings. However, this circumstance cannot
justify the lack of caution in the choice of words used by officials
in their statements. Moreover, in the present case, the
statement at issue was made just a few days following the institution
of the criminal investigation. It was particularly important at this
initial stage, even before the applicant had been formally charged,
not to make any public allegations which could have been interpreted
as confirming the guilt of the applicant in the opinion of an
important public official.
The
Prosecutor General's statement was reported, with almost identical
word-for-word quotations, in at least two popular news media outlets.
It is true that the statement was very succinct and that it appeared
to have been aimed at informing the public about the fact of, and the
reasons for, the institution of criminal proceedings against the
applicant. Nevertheless, the statement unequivocally declared that
the applicant's article published in his newspaper “indeed
contain[ed] a threat of terrorism”. Moreover, following a brief
explanation as to the content of the applicant's publication, the
Prosecutor General made a further declaration that “this
information constitutes a threat of terrorism”. Given the high
position held by the Prosecutor General, particular caution should
have been exercised in the choice of words for describing the pending
criminal proceedings. The Court considers that these specific
remarks, made without any qualification or reservation, amounted to a
declaration that the applicant had committed the criminal offence of
threat of terrorism. Thus, these remarks prejudged the assessment of
the facts by the competent judicial authority and could not but have
encouraged the public to believe the applicant guilty before he had
been proved guilty according to law.
There
has accordingly been a violation of Article 6 § 2 of the
Convention.
IV. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
A. Article 3 of the Convention
The
applicant complained about the conditions of his pre-trial
detention. In particular, he alleged that, during his detention
in Detention Facility No. 1, he had not been allowed to receive
newspapers and magazines. He had been handcuffed and searched when
taken out of his cell for questioning or other purposes. As to his
conditions of detention after his transfer to the MNS detention
facility, he alleged that he had not been allowed personal visits and
that he had been held alone in a cell measuring 8 square metres,
which had been badly ventilated and in which an electric light had
been switched on throughout the day and night. He had been allowed to
take a hot shower once a week and had had to wash his underwear
himself using the cold water in his cell.
Even
assuming that there were effective remedies available to the
applicant in respect of the conditions of his detention and that he
has exhausted those remedies, the Court considers that the
applicant's description of his conditions of detention does not
disclose an appearance of ill-treatment reaching the minimum level of
severity required under Article 3 of the Convention. It follows
that this complaint is manifestly ill founded and must be
rejected in accordance with Article 35 §§ 3 and 4 of the
Convention.
B. Article 5 of the Convention
The
applicant complained under Article 5 §§ 1 (c), 3 and 4 of
the Convention about the Sabail District Court's decision of 3 July
2007 remanding him in custody, delivered in the context of the second
set of criminal proceedings. In particular, he complained that there
had been no reasonable suspicion that he had committed a crime and
that the domestic courts had failed to give sufficient reasons for
his detention on remand.
The
Court notes that, prior to the Sabail District Court's detention
order of 3 July 2007, the applicant had already been convicted and
sentenced to a prison term on 20 April 2007 in the first set of
criminal proceedings. That conviction had been upheld by the Court of
Appeal on 6 June 2007 and, at the time of the detention order of
3 July 2007 in the second set of criminal proceedings, a cassation
appeal against that conviction was pending the Supreme Court's
examination. In this connection, the Court notes that, in determining
the period of detention pending trial, the period to be taken into
consideration begins on the day the accused is taken into custody and
ends on the day when the charge is determined, even if only by a
court of first instance (see, for example, Hummatov v. Azerbaijan
(dec.), nos. 9852/03 and 13413/04, 18 May 2006). In the present
case, the criminal charge in the first set of criminal proceedings
against the applicant was determined on 20 April 2007 and, from that
date, he was detained “after conviction by a competent court”
within the meaning of Article 5 § 1 (a) of the Convention. Even
though, for whatever reason, an order for the applicant's “pre-trial
detention” was made in the second set of proceedings
subsequently to his conviction in the first set of criminal
proceedings, no issue arises under Article 5 §§ 1 (c) and 3
of the Convention in respect of the applicant's detention after that
date, as there was already another “lawful” basis for his
detention during that period. The Court considers that no issue
arises in the present case under Article 5 § 4 either.
It
follows that this complaint is manifestly ill-founded and must be
rejected in accordance with Article 35 §§ 3 and 4 of the
Convention.
C. Other complaints
The
applicant complained under Article 6 § 3 (a) of the Convention
that he had not been informed promptly of the nature and cause of the
accusation against him in the second set of proceedings. He also
complained under Article 7 that, in both sets of criminal
proceedings, the acts for which he had been convicted did not
constitute a criminal offence. Lastly, he complained under Article 8
of the Convention that the searches conducted on 22 May 2007 in his
flat and the newspapers' office had violated his right to respect for
his home.
In
the light of all the material in its possession, and in so far as the
matters complained of are within its competence, the Court finds that
these complaints do not disclose any appearance of a violation of the
rights and freedoms set out in the Convention or its Protocols. It
follows that these complaints are manifestly ill-founded and must be
rejected in accordance with Article 35 §§ 3 and 4 of the
Convention.
V. APPLICATION OF ARTICLES 46 AND 41 OF THE CONVENTION
A. Article 46 of the Convention
Article 46 of the Convention provides:
“1. The High Contracting Parties
undertake to abide by the final judgment of the Court in any case to
which they are parties.
2. The final judgment of the Court shall be
transmitted to the Committee of Ministers, which shall supervise its
execution.”
In the context of the execution of judgments in
accordance with Article 46 of the Convention, a judgment in which the
Court finds a breach of the Convention imposes on the respondent
State a legal obligation under that provision to put an end to the
breach and to make reparation for its consequences in such a way as
to restore as far as possible the situation existing before the
breach. If, on the other hand, national law does not allow – or
allows only partial – reparation to be made for the
consequences of the breach, Article 41 empowers the Court to afford
the injured party such satisfaction as appears to it to be
appropriate. It follows, inter alia, that a judgment in which
the Court finds a violation of the Convention or its Protocols
imposes on the respondent State a legal obligation not just to pay
those concerned the sums awarded by way of just satisfaction, but
also to choose, subject to supervision by the Committee of Ministers,
the general and/or, if appropriate, individual measures to be adopted
in its domestic legal order to put an end to the violation found by
the Court and make all feasible reparation for its consequences in
such a way as to restore as far as possible the situation existing
before the breach (see Maestri v. Italy [GC], no. 39748/98, §
47, ECHR 2004 I; Assanidze v. Georgia [GC], no. 71503/01,
§ 198, ECHR 2004 II; and Ilaşcu and Others v.
Moldova and Russia [GC], no. 48787/99, § 487, ECHR
2004-VII).
The
Court reiterates that its judgments are essentially declaratory in
nature and that, in general, it is primarily for the State concerned
to choose, subject to supervision by the Committee of Ministers, the
means to be used in its domestic legal order in order to discharge
its obligation under Article 46 of the Convention, provided that
such means are compatible with the conclusions set out in the Court's
judgment (see, among other authorities, Öcalan v. Turkey
[GC], no. 46221/99, § 210, ECHR 2005-IV; Scozzari and Giunta
v. Italy [GC], nos. 39221/98 and 41963/98, § 249, ECHR
2000-VIII); and Brumărescu v. Romania (just satisfaction)
[GC], no. 28342/95, § 20, ECHR 2001-I). This discretion as to
the manner of execution of a judgment reflects the freedom of choice
attached to the primary obligation of the Contracting States under
the Convention to secure the rights and freedoms guaranteed (Article
1) (see Papamichalopoulos and Others v. Greece (Article 50),
31 October 1995, § 34, Series A no. 330 B).
However,
exceptionally, with a view to helping the respondent State to fulfil
its obligations under Article 46, the Court will seek to indicate the
type of measure that might be taken in order to put an end to a
violation it has found to exist. In such circumstances, it may
propose various options and leave the choice of measure and its
implementation to the discretion of the State concerned (see, for
example, Broniowski v. Poland [GC], no. 31443/96, §
194, ECHR 2004-V). In certain cases, the nature of the violation
found may be such as to leave no real choice as to the measures
required to remedy it and the Court may decide to indicate only one
such measure (see, for example, Assanidze, cited above, §
202).
The
Court reiterates its above findings that both instances of
interference with the applicant's freedom of expression were not
justified under Article 10 § 2 of the Convention. In particular,
in both instances, there existed no justification for imposing prison
sentences on the applicant. The Court notes that, whereas the
applicant was also convicted of a (prima facie unrelated) tax
offence, by the date of delivery of the present judgment he has
already served the part of the total sentence corresponding to that
offence (four months' imprisonment), and that currently he is
serving, in essence, the heavier part of the sentence corresponding
to the press offences in respect of which the relevant violations
have been found.
In
such circumstances, in view of the above findings of violations of
Article 10 of the Convention, it is not acceptable that the applicant
still remains imprisoned. Accordingly, by its very nature, the
situation found to exist in the instant case does not leave any real
choice as to the measures required to remedy the violations of the
applicant's Convention rights.
Therefore,
having regard to the particular circumstances of the case and the
urgent need to put an end to the violations of Article 10 of the
Convention, the Court considers that, as one of the means to
discharge its obligation under Article 46 of the Convention, the
respondent State shall secure the applicant's immediate release.
B. Article 41 of the Convention
Article 41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
1. Damage
(a) Pecuniary damage
The
applicant claimed that, as a result of his conviction, he had been
forced to close down several mass-media outlets which belonged to him
personally: two newspapers, two Internet sites and one journal. He
estimated the total value of these businesses at 203,652 euros (EUR),
based on the initial capital invested to start them. He also claimed
that, as the sole owner of the Realny Azerbaijan and Gündəlik
Azərbaycan newspapers, he had sustained a loss of personal
profit, in the estimated total amount of EUR 230,136 per year,
for each year the newspapers had not been produced. He further
claimed EUR 16,568 for advance rental payments for the newspapers'
offices, which he had been unable to use after his conviction.
He
further claimed pecuniary damage in respect of certain possessions
that had been allegedly “confiscated” by the authorities
during the searches of his flat and his editorial office, including:
(a) several “photo archives” and other “investigative
journalistic materials”, which he valued at EUR 27,098; (b)
computer equipment costing 23,000 US dollars; and (c) certain pieces
of furniture from the editorial office, estimated to cost EUR 7,287.
Lastly,
the applicant claimed EUR 8,146 in respect of the expenses that his
parents had allegedly incurred in commuting to the prison to visit
him, in providing him with food parcels in order to complement his
prison diet, and for telephone communications with him.
The
Government submitted that the applicant had failed to provide
sufficient documentary evidence in support of any of the above claims
or to explain the method of calculation of the value of his media
outlets and other estimated figures. They also submitted that the
applicant had failed to provide any evidence that any of his
possessions had been confiscated; instead, he had produced only a
search record and a record confirming that one of his employees had
submitted two computers to the authorities for investigation
purposes.
The
Court points out that under Rule 60 of the Rules of the Court, any
claim for just satisfaction must be itemised and submitted in writing
together with the relevant supporting documents or vouchers, failing
which the Court may reject the claim in whole or in part.
As
to the applicant's claims in respect of the value of the media
outlets he had to close down and his loss of earnings, the Court
notes that the applicant has not raised a complaint before the Court
concerning the termination of activities of his newspapers and other
media outlets. In any event, he has not submitted any documents or
any other evidence in support of his claims in respect of the amounts
invested in those media outlets and in respect of his future earnings
from operating them as their owner and editor-in-chief. In
particular, no records of past profits have been submitted. Likewise,
the applicant has not submitted sufficient evidence in respect of the
loss of advance rental payments.
As
to the claims in respect of the allegedly confiscated property, the
Court notes that, apart from the 23 computers seized from the
newspapers' offices and confiscated pursuant to the Assize Court's
judgment, it is unable to determine from the material in its
possession that any of the other alleged property has indeed been
permanently confiscated and that all of it had belonged personally to
the applicant. As to the claim in respect of the confiscated computer
equipment, the Court notes that the applicant has submitted no
evidence in support of his estimates as to its value.
As
to the remaining claims, the Court does not discern any causal link
between the violations found and the pecuniary damage alleged.
For
the above reasons, the Court rejects the applicant's claims in
respect of pecuniary damage.
(b) Non-pecuniary damage
The
applicant claimed EUR 70,000 in respect of non-pecuniary damage.
The
Government submitted that the finding of a violation would constitute
sufficient reparation in respect of any non-pecuniary damage
suffered.
In
the light of the specific circumstances of the present case, the
particular gravity of the violations of the applicant's freedom of
expression and the fact that he had been sentenced to long-term
imprisonment for press offences without any relevant justification,
and bearing in mind that by the time of the examination of the
present application he had spent more than two years in prison, the
Court considers that the applicant must have undoubtedly endured
serious moral suffering which cannot be compensated solely by the
finding of violations. Moreover, although the Court has found above
that the alleged pecuniary damage was unsupported or not fully
supported by relevant evidence, it does not find it unreasonable to
suppose that the applicant incurred other forms of damage which were
directly due to the violations found (compare Ilaşcu and
Others, cited above, § 489). The Court considers that, in
this case, the above circumstance should also be taken into account
when assessing the award for damages.
Making
its assessment on an equitable basis, as required by Article 41
of the Convention, the Court awards the applicant the sum of EUR
25,000 in respect of non-pecuniary damage, plus any tax that may be
chargeable on this amount.
2. Costs and expenses
The
applicant also claimed EUR 602 for the costs and expenses incurred
before the domestic courts and EUR 2,200 for those incurred before
the Court. He also claimed EUR 520 for translation expenses. In
support of these claims, he submitted statements from a law office
whose lawyers had represented him in the domestic proceedings, a copy
of the contract for legal services in the Strasbourg proceedings, and
copies of receipts issued by a translation company.
The
Government submitted that the evidence submitted by the applicant was
insufficient to conclude that the expenses claimed had been actually
incurred.
According
to the Court's case-law, an applicant is entitled to the
reimbursement of costs and expenses only in so far as it has been
shown that these have been actually and necessarily incurred and were
reasonable as to quantum. In the present case, regard being had to
the information in its possession and the above criteria, the Court
considers it reasonable to award the sum of EUR 2,822 covering costs
under all heads, plus any tax that may be chargeable to the applicant
on this amount.
3. Default interest
The
Court considers it appropriate that the default interest should be
based on the marginal lending rate of the European Central Bank, to
which should be added three percentage points.
FOR THESE REASONS, THE COURT
Declares unanimously the complaints under
Article 10, Article 6 § 1 (concerning the alleged lack
of impartiality) and Article 6 § 2 of the Convention
admissible and the remainder of the application inadmissible;
Holds unanimously that there has been a
violation of Article 10 of the Convention in respect of the
applicant's first criminal conviction;
Holds unanimously that there has been a
violation of Article 10 of the Convention in respect of the
applicant's second criminal conviction;
Holds unanimously that there has been a
violation of Article 6 § 1 of the Convention;
Holds unanimously that there has been a
violation of Article 6 § 2 of the Convention;
Holds by six votes to one that the respondent
State shall secure the applicant's immediate release;
Holds unanimously
(a) that
the respondent State is to pay the applicant, within three months
from the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, EUR 25,000
(twenty-five thousand euros), plus any tax that may be chargeable, in
respect of non-pecuniary damage, and EUR 2,822 (two thousand eight
hundred and twenty-two euros), plus any tax that may be chargeable to
the applicant, in respect of costs and expenses, to be converted into
New Azerbaijani manats at the rate applicable at the date of
settlement;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amounts at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points;
Dismisses unanimously the remainder of the
applicant's claim for just satisfaction.
Done in English, and notified in writing on 22 April 2010, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Christos Rozakis
Registrar President
