European Court of Human Rights

FIRST SECTION

CASE OF GANBAROVA AND OTHERS v. AZERBAIJAN

(Applications nos. 1158/17 and 2 others - see appended list)

JUDGMENT
 

STRASBOURG

21 September 2023

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

In the case of Ganbarova and Others 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 applications 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 the applicants listed in the appended table ("the applicants"), represented by Mr E. Sadigov and Ms Z. Sadigova, lawyers based in Azerbaijan, on the various dates indicated in the appended table;

the decision to give notice of the applications to the Azerbaijani Government ("the Government"), represented by their Agent, Mr Ç. Əsgərov;

the observations submitted by the Government and the observations in reply submitted by the applicants;

the comments submitted by the Helsinki Foundation for Human Rights and ARTICLE 19, which were granted leave to intervene by the President of the Section;

Having deliberated in private on 29 August 2023,

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

SUBJECT MATTER OF THE CASE

1.  The applications concern the travel bans imposed on the applicants, who are independent journalists, within the framework of criminal proceedings relating to the activities of Meydan TV, an online media channel with which they had collaborated.

2.  On different dates in 2015 and 2016 (see the appended table) the applicants learned that restrictions on their right to leave Azerbaijan had been imposed and that they were no longer free to leave the country.

3.  The restrictions were imposed by the investigating authorities, in the absence of any judicial decision, within the framework of criminal proceedings relating to the activities of Meydan TV. The applicants were not convicted, accused or suspected persons in those criminal proceedings and had only been questioned as witnesses.

4.  On various dates, the applicants challenged the lawfulness of the restrictions imposed on them by lodging complaints both with the administrative courts and with the ordinary courts under the procedure concerning the review of the lawfulness of procedural actions or decisions by the prosecuting authorities.

5.  By final decisions adopted on various dates - by the Supreme Court in the administrative proceedings and by the Baku Court of Appeal in the proceedings relating to the review of the lawfulness of the prosecuting authorities' actions and decisions - the domestic courts refused to examine the applicants' complaints on the merits, finding that they did not have jurisdiction to examine such a complaint (see the appended table).

6.  The applicants complained under Article 2 of Protocol No. 4 to the Convention and Article 13 of the Convention that their right to leave Azerbaijan had been violated by the travel bans imposed on them by the domestic authorities and that they had no effective remedy at the domestic level in respect of those travel bans.

7.  They further complained under Article 10 of the Convention and Article 18 of the Convention in conjunction with Article 2 of Protocol No. 4 to the Convention that the imposition of travel bans on them had violated their freedom of expression and that their Convention rights had been restricted for purposes other than those prescribed in the Convention. The applicant in application no. 1158/17 also complained under Article 8 of the Convention that she had been subjected to an unlawful search at Baku Airport on 6 December 2015, when she had not been allowed to leave the country.

8.  In their observations, the applicants lodged a further complaint, arguing that there had been a hindrance to the exercise of their right of individual application under Article 34 of the Convention as there had been a delay in the delivery of their letters to the Court.

THE COURT'S ASSESSMENT

1. JOINDER OF THE APPLICATIONS

9.  Having regard to the similar subject matter of the applications, the Court finds it appropriate to examine them jointly in a single judgment.

2. ALLEGED VIOLATION OF ARTICLE 2 of PROTOCOL No. 4 TO THE CONVENTION

10.  The Court refers to the general principles established in its case-law and set out in Mursaliyev and Others v. Azerbaijan (nos. 66650/13 and 10 others, §§ 29-31, 13 December 2018), which are equally pertinent to the present case.

11.  Turning to the circumstances of the present case, the Court notes that in Mursaliyev and Others (ibid., §§ 29-36), having examined an identical complaint based on the same facts, it found that the imposition of a travel ban on the applicants, who had only been witnesses in criminal proceedings, by the investigating authorities in the absence of any judicial decision had not been "in accordance with the law". The Court considers that the analysis and finding it made in Mursaliyev and Others also apply to the present case and sees no reason to deviate from that finding.

12.  Accordingly, this complaint is admissible and there has been a violation of the applicants' right to leave their country, as guaranteed by Article 2 of Protocol No. 4 to the Convention, on account of the travel ban imposed on them by the prosecuting authorities.

3. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION

13.  The Court has already found in Mursaliyev and Others (cited above, §§ 44-47) that the applicants in that case did not have an effective remedy under Azerbaijani law affording them the opportunity to raise their complaints regarding the restrictions imposed on their right to leave the country because both the administrative and ordinary courts had refused to examine their complaints on the merits, declaring that they did not have jurisdiction to examine the lawfulness of travel bans imposed by the investigating authorities.

14.  Having examined all the material before it, the Court does not see any fact or argument capable of persuading it to reach a different conclusion in the present case.

15.  It follows that this complaint is likewise admissible and reveals a violation of Article 13 taken together with Article 2 of Protocol No. 4 to the Convention in respect of the applicants.

4. ALLEGED VIOLATION OF ARTICLE 34 OF THE CONVENTION

16.  In their observations, the applicants argued that the delay in the delivery of their letters to the Court had not been a coincidence and had been the result of an interference by the Government, since the postal service in the country was under State control.

17.  Having examined the submissions made by the applicants and the material available to it, the Court finds that there is no sufficient factual basis for it to conclude that the authorities of the respondent State have interfered in any way with the applicants' exercise of their right of individual application in the proceedings before the Court in the present case.

18.  In view of the foregoing, the Court finds that the respondent State has not failed to comply with its obligations under Article 34 of the Convention.

5. OTHER COMPLAINTS

19.  As concerns the remaining complaints (see paragraph 7 above), having regard to the facts of the case, the submissions of the parties, and its findings above (see paragraphs 12 and 15 above), the Court considers that it has dealt with the main legal questions raised by the case and that there is no need to give a separate ruling on the admissibility and merits of these complaints (see 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

20.  The applicants each claimed the following amounts in respect of non-pecuniary damage: 50,000 euros (EUR) in application no. 1158/17; EUR 40,000 in application no. 8405/17; and EUR 46,000 in application no. 11040/17. They also claimed the following amounts for legal services incurred in the proceedings before the domestic courts and the Court: EUR 16,019.95 in application no. 1158/17; EUR 9,083.85 in application no. 8405/17; and EUR 12,308.57 in application no. 11040/17.

21.  The Government submitted that the applicants' claims were unsubstantiated and excessive.

22.  The Court awards each applicant EUR 5,000 in respect of non-pecuniary damage, plus any tax that may be chargeable on that amount. Furthermore, having regard to the documents in its possession, the fact that the applicants were represented by the same lawyers and that substantial parts of their submissions were similar, the Court considers it reasonable to award each applicant the sum of EUR 500 in respect of the legal services rendered by Mr E. Sadigov and Ms Z. Sadigova, plus any tax that may be chargeable to the applicants.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

1. Decides to join the applications;
2. Declares the complaints concerning Article 2 of Protocol No. 4 to the Convention and Article 13 of the Convention admissible;
3. Holds that there has been a violation of Article 2 of Protocol No. 4 to the Convention;
4. Holds that there has been a violation of Article 13 of the Convention;
5. Holds that the respondent State has not failed to comply with its obligations under Article 34 of the Convention;
6. Holds that there is no need to examine the admissibility and merits of the remaining complaints;
7. Holds

(a)  that the respondent State is to pay each applicant, within three months, the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement:

(i)  EUR 5,000 (five thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;

(ii)  EUR 500 (five hundred euros), plus any tax that may be chargeable to the applicants, in respect of costs and expenses;

(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;

8. Dismisses the remainder of the applicants' claims for just satisfaction.

Done in English, and notified in writing on 21 September 2023, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

 Liv Tigerstedt Krzysztof Wojtyczek
 Deputy Registrar President

APPENDIX