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MINISTERS’ DEPUTIES |
Notes on the Agenda |
CM/Notes/1419/H46-3 |
2 December 2021 |
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1419th meeting, 30 November – 2 December 2021 (DH) Human rights
H46-3 Mahmudov and Agazade group v. Azerbaijan (Application No. 35877/04) Supervision of the execution of the European Court’s judgments Reference document CM/ResDH(2013)199, CM/ResDH(2014)183, CM/ResDH(2015)250, CM/ResDH(2016)145, CM/Del/Dec(2018)1318/H46-4 |
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Application |
Case |
Judgment of |
Final on |
Indicator for the classification |
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40984/07 |
FATULLAYEV |
22/04/2010 |
04/10/2020 |
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13274/08 |
TAGIYEV AND HUSEYNOV |
05/12/2019 |
05/03/2020 |
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52584/09 |
HASANOV |
08/07/2021 |
08/07/2021 |
Case description
These cases concern violations of the right to freedom of expression of the applicant journalists due, in particular, (in all cases) to the unjustified use of imprisonment as a sanction for criminal defamation (the Court found no special circumstances justifying such a sanction, such as insult, incitement to violence, racial or religious hatred); and (in the Fatullayev case) insufficient reasons invoked to justify a finding of defamation as regards some statements, and the arbitrary application of anti-terror legislation to sanction other subsequent statements (violations of Article 10).
The Fatullayev case also concerns violations of the right to an impartial tribunal, as the judge in the first defamation case had already found against the applicant in a civil defamation case based on the same statements (violation of Article 6 § 1). Declarations made by the public prosecutor in this case, relating to the application of anti-terror legislation, were also found to violate the applicant’s right to the presumption of innocence (violation of Article 6 § 2).
Status of execution
Individual measures:
In the Mahmudov and Agazade case, in the light of the actions taken (exemption from serving the sentence, absence of any mention of the sentence in the criminal records, payment of the just satisfaction), the Committee closed its supervision of the individual measures at the December 2011 DH meeting.
In the Fatullayev case, the convictions were quashed following the European Court’s judgment and the question related to the time unjustly spent in detention was resolved as a result of the applicant’s early release, following a presidential pardon freeing him from serving a prison sentence imposed for another offence. The just satisfaction has been paid. The Committee closed its supervision of the individual measures at the December 2011 DH meeting.
In the Tagiyev and Huseynov case, the applicants were dispensed from serving the remainder of their sentence by a presidential pardon decree and were released from prison, having spent more than one year and one month in detention. The first applicant, who had been released from prison on 28 December 2007 by a presidential pardon decree, died on 23 November 2011 while his case was pending before the Court. The just satisfaction was paid to both applicants. According to the communication of 25 May 2021
(DH-DD (2021)529) submitted by the authorities, the applicants’ convictions were expunged following their release in accordance with Article 83 of the Criminal Code and their criminal records erased. Furthermore, the judgment of the European Court was transmitted to the relevant state bodies and the Supreme Court to examine whether additional measures of redress need to be taken.
In the Hasanov case, the applicant was released from serving the remainder of his sentence after being pardoned by a presidential decree. The applicant died on 20 March 2012 and the proceedings before the Court were pursued by his family. Information is awaited on the payment of just satisfaction.
General measures:
The Committee has regularly examined this group of cases at its DH meetings since December 2010. It has adopted four interim resolutions (CM/ResDH(2013)199, CM/ResDH(2014)183, CM/ResDH(2015)250 and CM/ResDH(2016)145). For a more detailed summary, see the notes for the 1273rd meeting, December 2016 (CM/Notes/1273/H46-4).
The Committee has considered that the execution of these judgments requires three main sets of measures to be taken by the Azerbaijani authorities:
(i) those related to criminal defamation, namely legislative amendments to the Criminal Code in order to remove lengthy prison sentences for defamation (Article 147) and insult (Article 148);
(ii) those aiming to prevent the arbitrary application of other provisions of Criminal Code to limit freedom of expression, such as terrorism, incitement to violence, racial or religious hatred etc.;
(iii) and those aiming to prevent violations by the Public Prosecutor’s Service and the executive of the right to the presumption of innocence.
On 25 May 2021, shortly before its 1406th meeting (7-9 June 2021) (DH), the authorities submitted a communication indicating the following measures taken and planned. The Committee deeply regretted that the late submission of this information did not allow for a full analysis for that meeting.
As regards legislative reform, on 12 January 2021 Presidential Order on “Deepening the reforms in the field of media” was adopted. The aim of the Order is to support the development of the media in the country, to strengthen institution building in this area and to promote the application of new information and communication technologies and innovations. The Order established a public legal entity – the Agency of the Republic of Azerbaijan for Development of Media, and also instructed the relevant authorities to prepare a Draft Law on Media. The preparation of the comprehensive Draft Law on Media is underway. The Media Development Agency is also entitled to develop proposals on improving the regulatory framework in order to ensure freedom of speech and pluralism.
As regards the issues related to the arbitrary application of other provisions in the Criminal Code by prosecution authorities and judiciary, the judicial practice of rejecting motions for imprisonment for libel and insult continued between 2016 and 2020. These issues are being addressed in addition by ongoing judicial reforms focused on strengthening independence of the judiciary, increasing the quality and efficiency of judicial activity and combating corruption and other offences committed by judges. In accordance with the Presidential Decree "On Deepening Reforms in the Judicial and Legal System" dated April 3, 2019 a special working group consisting of officials from the Ministry of Justice, the Judicial-Legal Council, the Supreme Court and the Prosecutor General's Office was established to reform penal policy and develop a unified judicial practice.
As regards to the breaches by the Public Prosecutor’s Service and the executive authorities of the right to the presumption of innocence, the Code of Ethical Conduct for Employees of the Prosecution Authorities of the Republic of Azerbaijan which was adopted in 2010 provides that “An employee of the prosecutor’s office must always adhere to the presumption of innocence and other principles in the proceedings, and refrain from actions that adversely affect a fair trial.
Furthermore, the Law “On the Prosecutor’s Office” of the Republic of Azerbaijan was amended in June 2016 with included provisions relating to disciplinary sanctions against a prosecutor for failure to duly perform his or her duties, as well as for non-compliance with the requirements of the Code of Ethics of the Prosecutor's Office.
In its decision taken at its 1406th meeting, the Committee noted that legislative measures, in particular amendments to Articles 147.1 and 148 of the Criminal Code are required, and that changes to the practice of the prosecution authorities and the domestic courts are also necessary to address the issues concerning the excessive use of criminal sanctions for defamation and arbitrary application of other provisions of the criminal code as well as breaches of the presumption of innocence by the Public Prosecutor’s Service and the public officials.
Furthermore, the Committee urged the authorities to co-operate closely with the Secretariat at a high level to facilitate the exchange of necessary information and draw on the assistance of the Council of Europe to align domestic legislation and practice with the relevant Council of Europe standards, notably the Recommendation CM/Rec(2016)4 of the Committee of Ministers to member States on the protection of journalism and safety of journalists and other media actors.
Analysis by the Secretariat
It is noted that in response to the Committee’s last decision, the Azerbaijani authorities have engaged in high level consultations with Secretariat, which, at the time of the preparation of the present Notes, were under way.
The information provided by the authorities before the June 2021 DH meeting demonstrates certain developments regarding legislative framework and practice. The outstanding issues are being discussed with the authorities in the context of the above-mentioned consultations. In particular:
As regards the imposition of disproportionate criminal sanctions for defamation, the authorities indicated that the judicial practice of rejecting motions for imprisonment continued during the period between 2016 and 2020, and this could be noted with interest. However, it would be useful to receive detailed statistical information in this regard concerning the indicated period about: 1) the number of prosecutions initiated under Articles 147 (defamation) and 148 (insult); 2) the number of those prosecutions which resulted in convictions and the sentence imposed; 3) the number of prosecutions which resulted in acquittals. It would also be useful to receive examples of domestic judgments in which the courts rejected motions for imprisonment.
As regards the necessary legislative amendments, detailed information is awaited on the ongoing reforms in the context of the Presidential Order on “Deepening the reforms in the field of media” of 12 January 2021, which could also include amendments to Articles 147 and 148 of the Criminal Code with a view to removing lengthy prisons sentences so as to align them with relevant Council of Europe standards.
In this context, it is recalled that despite the fact that a number of steps have been taken by the authorities in the right direction in the past, such as the adoption of the Presidential Order on “the National Programme for Action to Raise Effectiveness of the Protection of Human Rights and Freedoms” which included “proposals on improving the legislation in order to decriminalise defamation” and subsequent preparation of a draft law on defamation, no tangible progress has been achieved since (for details see Interim Resolution CM/ResDH(2014)183). Therefore, in order to secure the desired impact it appears that the work on the Draft Law on Media, would be greatly facilitated if carried out in cooperation with the Council of Europe, in particular, with participation of the Venice Commission.
As regards the arbitrary application of other provisions of the Criminal Code, such as offences concerning terrorism, incitement to violence, racial or religious hatred, to limit freedom of expression and to dissuade journalists from their involvement in debates on public matters, the information provided by the authorities concerning the ongoing judicial reforms and humanisation of penal policy whilst of interest, is of a general nature.
The measures to be taken in this context should focus on the protection of journalists against arbitrary prosecution in line, in particular, with Recommendation CM/Rec(2016)4 of the Committee of Ministers on the protection of journalism and safety of journalists and other media actors, which recommends in particular, taking appropriate measures to protect journalist against “misuse, abuse or threatened use of different types of legislation to prevent contributions to public debate, including defamation, anti-terrorism, national security, public order, hate speech, blasphemy and memory laws […] as means of intimidating and silencing journalists and other media actors reporting on matters of public interest”.
Accordingly, it is of utmost importance that measures are taken in order improve the judicial practice in this regard so that any interference with the freedom of expression on account of alleged incitement to violence, hatred and other crimes is supported by relevant and sufficient reasons. For example, in the case of Tagiyev and Huseynov (13274/08), the Court has held that the domestic courts failed to give any explanation as to why the particular remarks contained in the article written by the applicants constituted incitement to religious hatred and hostility. Nor did they consider whether the context of the case, the public interest and the intention of the authors of the impugned article justified the possible use of a degree of provocation or exaggeration (§§ 47-48). The authorities could be invited to inform the Committee of the measures planned in this respect.
As regards violations by the Public Prosecutor’s Service and the executive of the right to the presumption of innocence, the measures taken by the authorities so far do not appear sufficient bearing in mind repetition of similar violations in other group of cases examined by the Committee (see for example, Mirgadirov (No. 62775/14) and Khadija Ismayilova (No. 2) (30778/15)). In these judgments the Court held that “it has already found a breach of Article 6 § 2 of the Convention in a number of cases against the respondent State on account of the choice of words used by the authorities in their statements to the press which prejudged the assessment of the facts by the courts and encouraged the public to believe that the persons charged were guilty before they had been proved guilty according to law”. It thus appears necessary that the authorities take targeted measures to improve the practice of the prosecution in this regard, in particular, through adoption of the relevant guidelines and instructions, so as to ensure that the statements made by the prosecution authorities and public officials respect the requirements of Article 6 § 2.
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Financing assured: YES |