European Court of Human Rights

 

 

FIRST SECTION

CASE OF INSTITUTE FOR REPORTERS’ FREEDOM AND SAFETY v. AZERBAIJAN

(Application no. 23503/15)

 

 

 

 

 

 

JUDGMENT

STRASBOURG

1 June 2023

 

This judgment is final but it may be subject to editorial revision.

In the case of Institute For Reporters’ Freedom and Safety v. Azerbaijan,

The European Court of Human Rights (First Section), sitting as a Committee composed of:

          Krzysztof Wojtyczek, President,
          Lətif Hüseynov,
          Erik Wennerström, judges,
and Liv Tigerstedt, Deputy Section Registrar,

Having regard to:

the application (no. 23503/15) 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”) on 7 May 2015 by the Institute for Reporters’ Freedom and Safety Public Union (“Reportyorların Azadlıq və Təhlükəsizlik İnstitutu” İctimai Birliyi - “the applicant organisation”), which was registered in 2006, had its headquarters in Baku and was represented before the Court by Ms G. Ismayilova, a lawyer based in Azerbaijan;

the decision to give notice to the Azerbaijani Government (“the Government”), represented by their Agent, Mr Ç. Əsgərov, of the complaints under Articles 8, 11 and 18 of the Convention and Article 1 of Protocol No. 1 to the Convention, and to declare the remainder of the application inadmissible;

the parties’ observations;

Having deliberated in private on 9 May 2023,

Delivers the following judgment, which was adopted on that date:

SUBJECT MATTER OF THE CASE

1.  The applicant organisation is a non-governmental organisation (NGO) specialising in the protection of journalists. The application concerns the search of its offices and the seizure of documents and electronic devices by the national authorities.

2.  On 22 April 2014 the Prosecutor General’s Office opened criminal case no. 142006023 under Article 308.1 (abuse of power) and Article 313 (forgery by an official) of the Criminal Code in connection with alleged irregularities in the financial activities of a number of NGOs (see Democracy and Human Rights Resource Centre and Mustafayev v. Azerbaijan, nos. 74288/14 and 64568/16, § 6, 14 October 2021).

I.        SEARCH OF THE APPLICANT ORGANISATION’S OFFICES AND SEIZURE OF ITS ASSETS

3.  On 7 August 2014 the Sabail District Court authorised the investigating authorities to search the applicant organisation’s office and “other places of storage” and to seize legal, financial, accounting and banking documents relating to the applicant organisation’s activities and its receipt of grants and other financial aid, as well as electronic devices containing such information and documents. The court referred to the need to ensure a complete, comprehensive, and objective investigation in criminal case no. 142006023.

4.  On 8 August 2014 the search was carried out in two offices of the applicant organisation situated in the same building in the presence of its deputy chairman and its lawyer. The investigating authorities seized laptops, computer system units, video cameras, photo cameras, voice recorders, mobile phones, CDs and DVDs, video cassettes, hard drives, flash drives, mobile phone SIM cards, a seal, stamps, and documents.

5.  On 19 August 2014 E.H., the chairman of the applicant organisation, was charged under Articles 192.2.2 (illegal entrepreneurship), 213.2.2 (tax evasion) and 308.2 (abuse of power) of the Criminal Code, and an arrest warrant was issued in respect of him. E.H. later left the country in 2015.

6.  The applicant organisation lodged a complaint under judicial supervision proceedings with the Nasimi District Court in which it asked the court (i) to find a violation of its rights under Articles 8 and 11 of the Convention and Article 1 of Protocol No. 1 to the Convention on account of the allegedly unlawful search of its offices and seizure of its assets; (ii) to order the immediate return to the applicant organisation of its seal and stamp, documents related to unspecified court cases and documents belonging to two other organisations (not related to the present application); and (iii) to declare unlawful the sealing of its offices by the investigating authorities.

7.  On 31 October 2014 the first-instance court dismissed the applicant organisation’s complaint. The court found that the search of the offices of the applicant organisation, carried out on the basis of the decision of 7 August 2014 (see paragraph 3 above), had been in accordance with domestic law and the Convention and necessary in the interests of a thorough investigation of the case. It also noted that criminal charges had been brought against E.H. (see paragraph 5 above). As to the seizure of assets, the court found that the seized documents and electronic devices could not be returned at that stage of the proceedings and that the applicant organisation had failed to provide information about documents relating to court cases.

8.  On 7 November 2014 the Baku Court of Appeal upheld the first‑instance court’s judgment on appeal, endorsing its reasoning.

II.     COMPLAINTS

9.  The applicant organisation complained under Article 8 of the Convention about the search and seizure at its offices. It further complained under Article 11 of the Convention that its right to freedom of association had been violated because the search and seizure at its offices had been intended to terminate its activity. The applicant organisation also complained under Article 1 of Protocol No. 1 of a violation of its right of property resulting from the seizure of its computers, other equipment and documents. Lastly, it complained that the restrictions imposed by the State in the present case had been applied for a purpose other than those envisaged by the relevant provisions, contrary to Article 18 of the Convention.

THE COURT’S ASSESSMENT

I.        ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION

10.  The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention or inadmissible on any other grounds. It must therefore be declared admissible.

11.  The general principles concerning searches of residential and professional premises have been reiterated in Aliyev v. Azerbaijan (nos. 68762/14 and 71200/14, § 219, 20 September 2018) and Avaz Zeynalov v. Azerbaijan (nos. 37816/12 and 25260/14, §§ 84-86, 22 April 2021).

12.  The Court firstly notes that it does not appear from the case file, nor has it been submitted by either party, that the applicant organisation was a suspect in criminal case no. 142006023. As to the charges against its chairman, they were brought after the search had been conducted in the applicant organisation’s premises (compare Aliyev, cited above, §§ 20-21 and 36-37).

13.  When authorising the search of the applicant organisation’s office and the seizure of all legal and financial documents, including those stored on electronic devices (see paragraphs 3-4 above), the Sabail District Court merely referred to the need to ensure a complete, comprehensive, and objective investigation in criminal case no. 142006023. The Court considers that such general reasoning does not demonstrate that the national authorities examined the question whether the interference with the applicant organisation’s rights answered a pressing social need and was proportionate to the legitimate aims pursued. Moreover, the terms of the search warrant were too broad and did not sufficiently specify the reason for the search or which items or documents relevant to the investigation were expected to be found and seized at the applicant organisation’s office. The breadth and vagueness of the search warrant were reflected in the way in which it was executed, given that the investigating authorities seized electronic devices and documents belonging to the applicant organisation which were not clearly related to the investigation in respect of which the searches and seizures were conducted. The Court notes in particular that the appellate court did not give any indication as to the relevance to the investigation of the items seized from the applicant organisation and limited itself to an endorsement of the first‑instance court’s findings without addressing the applicant organisation’s particular complaints.

14.  On the basis of the above, the Court concludes that the interference was not proportionate to the legitimate aim pursued.

15.  There has accordingly been a violation of Article 8 of the Convention.

II.     ALLEGED VIOLATION OF ARTICLE 18 OF THE CONVENTION

16.  The Government submitted that the applicant organisation had failed to exhaust domestic remedies. The applicant organisation disagreed.

17.  The Court observes that the applicant organisation did not raise any complaint under Article 18 of the Convention before the domestic courts which ordered the search and seizure in its premises. It follows that this complaint must be rejected under Article 35 §§ 1 and 4 of the Convention for non‑exhaustion of domestic remedies (see Rustamzade v. Azerbaijan, no. 38239/16, § 58, 7 March 2019).

III.   OTHER COMPLAINTS

18.  As to the applicant organisation’s complaints under Article 11 of the Convention and Article 1 of Protocol No. 1 to the Convention (see paragraph 9 above), having regard to the facts of the case, the submissions of the parties and its findings above, the Court considers that it has dealt with the main legal questions raised by the case and that there is no need to examine the admissibility and merits of the above complaints (see Aliyev, cited above, § 219, and Taner Kılıç v. Turkey, no. 70845/01, § 45, 24 October 2006; see also Centre for Legal Resources on behalf of Valentin Câmpeanu v. Romania [GC], no. 47848/08, § 156, ECHR 2014).

APPLICATION OF ARTICLE 41 OF THE CONVENTION

19.  The applicant organisation claimed 150,000 euros (EUR) in respect of pecuniary damage allegedly caused by the seizure of its computers and other electronic devices. It also claimed EUR 50,000 in respect of non-pecuniary damage.

20.  The Government argued that the applicant organisation’s claim in respect of pecuniary damage was unsubstantiated and that it had failed to demonstrate a causal link between the alleged violation and the pecuniary damage.

21.  The Court considers that the applicant organisation failed to substantiate its claim in respect of the pecuniary damage alleged; it therefore rejects this claim. However, it awards the applicant organisation EUR 4,500 in respect of non‑pecuniary damage, plus any tax that may be chargeable on that amount.

22.  The applicant organisation did not submit a claim in respect of costs and expenses. Accordingly, the Court considers that there is no call to award it any sum on that account.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

1.      Declares the complaint under Article 8 of the Convention admissible and the complaint under Article 18 of the Convention inadmissible;

2.      Holds that there has been a violation of Article 8 of the Convention;

3.      Holds that there is no need to examine the admissibility and merits of the complaints under Article 11 of the Convention and Article 1 of Protocol No. 1 to the Convention;

4.      Holds

(a)   that the respondent State is to pay the applicant organisation, within three months, EUR 4,500 (four thousand five hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage, to be converted into the currency of the respondent State 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 amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

5.      Dismisses the remainder of the applicant organisation’s claim for just satisfaction.

Done in English, and notified in writing on 1 June 2023, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

             Liv Tigerstedt                                               Krzysztof Wojtyczek
          Deputy Registrar                                                      President