MINISTERS’ DEPUTIES

Notes on the Agenda

CM/Notes/1501/H46-3

13 June 2024

1501st meeting, 11-13 June 2024 (DH) Human rights   H46-3 Khadija Ismayilova group v. Azerbaijan (Application No. 65286/13) Supervision of the execution of the European Court’s judgments Reference documents DH-DD(2024)386, DH-DD(2023)766, DH-DD(2022)1108, CM/Del/Dec(2023)1475/H46-4

 

Application	Case	Judgment of	Final on	Indicator for the classification
65286/13+	KHADIJA ISMAYILOVA	10/01/2019	10/04/2019	Complex problem
35283/14	KHADIJA ISMAYILOVA (No. 3)	07/05/2020	07/08/2020
6950/13	ABBASALIYEVA	27/04/2023	27/07/2023

“Promoting media professionalism and freedom of information in Azerbaijan” (PRO-M-FEX) project

Case description

The first two cases in this group[1] concern violations of the rights of the applicant, Ms Khadija Ismayilova, a renowned investigative journalist who conducted investigations into corruption and violations of human rights in Azerbaijan. Between 2010 and 2012 she published and contributed to several articles concerning the President’s family.

As regards application No. 65286/13, in 2012 the applicant received a letter threatening her with public humiliation if she did not stop her investigative reporting. When she refused, videos, featuring scenes of a sexual nature involving the applicant and her then boyfriend, taken with a hidden camera secretly installed in her bedroom, were posted on the Internet. Around the same time, newspapers ran stories accusing her of anti-government bias and immoral behaviour. During the investigation, the status report published in the press by the prosecution authorities disclosed sensitive private details, including her address at the time.

The Court held that the threat of public humiliation and the acts resulting in the flagrant and unjustified invasion of the applicant’s privacy were either linked to her journalistic activity or should have been treated as if they might be so linked, and that the authorities were thus required to take positive measures to protect her journalistic freedom of expression. It found that the authorities had failed to investigate these acts and that the interference with the applicant’s private life caused by the status report issued by the prosecution was not justified (violations of Articles 8 and 10).

Application No. 35283/14 concerns a newspaper article published after the online publication of the first video, comparing the applicant to a well-known pornographic performer. With regard to the civil proceedings brought by the applicant against the newspaper, the Court found that the respondent State did not comply with its positive obligation to secure protection of her right to respect for her private life, since the domestic courts failed to conduct an adequate balancing exercise between the applicant’s rights and the newspaper’s right to freedom of expression (violation of Article 8).

In the third case, Abbasaliyeva, following the appointment of the applicant as a Head physician in a hospital, newspaper articles were published drawing attention to the fact that she was the sister of a person who had been convicted of participation in the attempted coup d’état in 1995. The Court found that the respondent State had failed to fulfil its positive obligations, as the domestic courts which considered her claim against the newspaper in 2012 did not conduct an adequate balancing exercise between the applicant’s right to respect for her private life and the newspaper’s right to freedom of expression (§§ 36-38) (violation of Article 8).

Status of execution

In response to the Committee’s last decision adopted at its 1475^th meeting (September 2023) (DH), on 4 April 2024 the authorities submitted information (DH-DD(2024)386) on both individual and general measures, which are summarised under the relevant headings below.

Individual measures

At its previous examinations of the two first cases, the Committee has stressed the gravity of the violations found by the Court and their link with the applicant’s journalistic activity. It urged the authorities to re-open the investigation into the criminal offences against the applicant (threatening letter, secret filming and dissemination of intimate videos) to rectify the shortcomings found by the Court and, in particular, to investigate any potential motive arising from the applicant’s journalistic work. It further invited the authorities to provide information as to whether the applicant’s personal information had been removed from the public domain, and whether she had requested the re-opening of the civil proceedings against the newspaper concerned in application no. 35283/14.

At its 1451^st meeting (December 2022) (DH), the Committee noted with satisfaction the decision of the Prosecutor General’s Office to reopen the investigation. It also underlined that the possibility for the applicant to continue her work as a journalist without hindrance was another important individual measure, closely linked to the general measures.

At its last examination of the group, the Committee took note of the removal of the applicant’s personal information concerning her former address from the public domain as well as the investigative steps taken by the prosecution authorities following the reopening of the investigation. It invited the authorities to ensure that the prosecution authorities continue the investigation, taking due account of the findings of the European Court. The recent submission of the authorities contains no new information about the ongoing investigation.

This is the first examination of the third case in the group. The authorities stated that just satisfaction in this case has been paid on 10 April 2024.

General measures:

-       Measures concerning the legislative framework

On 20 May 2022 the authorities submitted a communication concerning the general measures (DH-DD(2022)549), particularly regarding the Media Law, which entered into force by Presidential Decree on 8 February 2022. They stated that the Media Law defines new goals in the field of freedom of speech and the press, and aims to ensure transparency and to strengthen the trust between the public and the media. The law includes the concepts of media and media subjects, and interprets the concept of journalist. The rights of journalists are further protected in the Criminal Code and the Code of Administrative Offences. Article 163 of the Criminal Code provides that “impending journalists in their legal professional activities by forcing them to disseminate or refuse to disseminate information, with use of violence or with threat of its application” is illegal.

In its opinion (No. 1078/2022), dated 20 June 2022, the Venice Commission concluded that in the context of an already extremely confined space for independent journalism and media in Azerbaijan, the Media Law will have a “chilling effect” on the freedom of journalism. Many provisions were criticised as they do not allow the media to effectively exercise its role as a “public watchdog”. The Venice Commission recommended that the Media Law should not be implemented as it stands. In particular, it called for abolishing the media register or repealing the excessively restrictive conditions for journalists and media entities before their inclusion into the media register^[2].

In a subsequent communication, dated 27 June 2023 (DH-DD(2023)766), the authorities explained that the Media Law provides for a broader definition of a “journalist” compared to the previous law. It covers journalists who officially work for a media entity (based on a labour contract) and also those who work freelance (based on civil law contracts). The Media Development Agency has no executive power and is not designated to implement all provisions of the Media Law, as the main authority for adopting decisions concerning disputes arising out of this law lies with the domestic courts. As to the Media Register, the protection provided under the Media Law extends to all journalists, not only those who are included in the Media Register. Journalists included in the Register may enjoy some additional - mostly social - privileges. Journalist cards do not serve as proof of being a journalist, but only that the person is included in the Media Register. Without having this card, a journalist can still carry out his/her journalistic activities and benefit from the relevant protection mechanisms under the law.

At its last examination of the group, the Committee noted that several provisions of the Media Law appear inconsistent with the Council of Europe standards, and do not appear to allow the media to effectively exercise its role as a “public watchdog”[3]. It invited the authorities to elaborate on concrete measures that could be envisaged to bring the Media Law fully in line with Council of Europe standards.  

No new information has been submitted by the authorities under this aspect.

-       Measures concerning the safety and security of journalists

At its previous examinations, the Committee has invited the authorities to provide information on the measures envisaged with a view to protecting the private and family life of journalists and the exercise of their freedom of expression. The authorities were also invited to take measures to investigate any possible connection between crimes committed against journalists and their professional activities.

In their recent communication (DH-DD(2024)386), the authorities refer to training and research conducted by the Prosecutor General’s office on the protection of private life.

-       Measures concerning balancing exercise in domestic court decisions between competing Convention rights

The Committee has invited the authorities to consider measures aimed at improving the practice of domestic courts in conducting an adequate balancing exercise between the right to respect for private life and reputation and the right to freedom of expression.

The authorities submitted three sample Supreme Court decisions to demonstrate that adequate balancing exercise between the right to respect for private life and reputation and the right to freedom of expressions had been respected.

Communications under Rule 9

Rule 9.1 submission (DH-DD(2022)615)

 

Ms Khadija Ismayilova complained that as a result of her previous conviction for illegal entrepreneurship, and large-scale tax evasion^[4], under the Media Law she cannot obtain journalistic accreditation.

Rule 9.2 submissions

Legal Education Society (DH-DD(2022)1211)

The Legal Education Society strongly criticised the Media Law and complained that journalists suffer from a repressive environment, physical attacks, and their private photos and videos were disseminated online in coordinated campaigns to discredit them. They also stated that the applicant’s case is not isolated, as the investigative authorities’ failure to investigate the connection between the crime against journalists and their journalistic activities is observed in other cases as well.

Media Defence (dated 2 May 2024, DH-DD(2024)549)

The Media Defence informed the Committee that Ms Ismayilova’s sensitive private information continues to be available in the public domain, including state-run media. Moreover, Ms Ismayilova has not been updated about the status of the reopened investigation nor has she received any information about the scope of the investigation. Ms Ismayilova continues to be subjected to harassment by the authorities. On 6 March 2024 the office of Toplum TV, for which Ms Ismayilova works as editor-in-chief, was raided by the police. Seven staff members were arrested, and Ms Ismayilova was questioned by the police regarding the criminal proceedings brought against her colleagues. It also appears that a travel ban is imposed on the applicant and Toplum TV is currently not operational following a hacking attack. In fear of attacks, Ms Ismayilova is forced to lead a restrictive life. It is also alleged that her phone was infected with Pegasus spyware.

The Media Defence further expressed concerns over several provisions of the Media Law, including restrictions on information sharing, obligations to disclose journalistic sources under specific circumstances and the lack of independence of media regulators. Referring to the detention of six journalists in 2023, they state that the crackdown on independent media continues.

 

Letter of Azerbaijani journalists and media representatives to the Council of Europe, dated 22 July 2023

In their letter, more than 60 journalists and media experts expressed their concern about the negative consequences of the application of the Media Law,[5] which in their view turns journalism into a licensed activity and has a negative impact on the activities of independent media and free journalism.

Analysis of the Secretariat

Individual measures:

Just satisfaction has been paid in all three cases.

Application No. 65286/13

According to the recent Rule 9 § 2 submission (DH-DD(2024)549), Ms Ismayilova’s sensitive private information continues to be available in the public domain, including in the state-run media. The authorities could therefore be invited to ensure that the applicant’s personal information has been totally removed from the public domain in accordance with the requirements of the Court’s judgment (Khadija Ismayilova,
§§ 139-150).

As to the investigative steps taken during the reopened investigation, the Committee has previously noted with interest the measures taken by the prosecution office.[6] Nevertheless, it appears that no further steps have been taken and several shortcomings identified in the European Court’s judgment have not yet been investigated. In particular, the prosecution authorities should:

·         investigate the potential link between the applicant’s professional activity and receipt of the threatening letter;

·         properly question the important witness, Mr N.J., an employee of Baktelekom, who could shed light on the identity of the possible authors of the crime regarding the instalment of a hidden camera in the applicant’s flat;

·         investigate the identity and address of the person (a certain Valeriy Mardanov), who sent the threatening letter to the applicant from Moscow;

·         investigate the websites where the intimate videos of the applicant were posted and investigate the words “SesTV Player” on the video and potential connection with the Ses newspaper.

The Committee could urge the authorities to intensify their efforts to ensure that the prosecution authorities broaden the scope of their investigation to elucidate the facts surrounding the secret recording in the applicant’s apartment. They should also investigate into the possible link of this breach with her journalistic work. More information would also be needed to clarify as to how the applicant could be actively involved in this new investigation.

Recalling that the applicant’s possibility to continue her journalistic activities without harassment or hindrance is also an important individual measure, which is closely linked to the general measures, the Committee may ask the authorities to clarify once again, whether despite her criminal conviction, which had been found by the European Court to be the result of misuse of criminal law intending to punish and silence the applicant[7], she may still obtain accreditation under the Media Law.^[8] This is all the more necessary as in a previous communication, the applicant complained that due to her previous conviction for illegal entrepreneurship, and large-scale tax evasion, she cannot obtain journalistic accreditation.

Applications Nos. 35283/14 and 6950/13  

Information is awaited about the re-opening of the civil proceedings in line with the Court’s judgment. In particular, in the reopened proceedings, the domestic courts need to conduct an adequate balancing exercise between the applicants’ Article 8 rights and the newspapers’ right to freedom of expression.

General measures:

General measures in a case are aimed at avoiding similar violations. It follows from the Court’s findings and reasoning in the present judgments that the authorities of Azerbaijan should put in place measures to protect journalists from attacks, threats and harassment linked to their work. As the Court has also found, interference with freedom of expression may have a “chilling effect” on the exercise of that freedom, and this is more so in cases of serious crimes committed against journalists, making it of utmost importance for the authorities to check a possible connection between the crime and the journalist’s professional activity (Khadija Ismayilova, §159). Thus, the positive obligations under Article 10 of the Convention require States to create, while establishing an effective system of protection of journalists, a favourable environment for participation in public debate by all the persons concerned, enabling them to express their opinions and ideas without fear, even if they run counter to those defended by the official authorities or by a significant part of public opinion, or even irritating or shocking to the latter (Khadija Ismayilova, § 158). This accords with the Committee’s Recommendation (CM/Rec(2016)4) on the protection of journalism and safety of journalists and other media actors.

 

So far, as regards the general measures required for these cases, the authorities have referred to the Media Law, which they consider provides greater clarity and transparency as regards the role and status of journalists in Azerbaijan, and provides certain benefits to those included on the Media Register. In addition, they state that the prosecution service has carried out some training on the protection of private life, although this does not appear to focus on journalists in particular.

Unfortunately, as the Committee has already underlined, some provisions of the Media Law, far from contributing to the establishment of a favourable environment for journalists, could in fact have a detrimental effect. In particular,   

• The definition of a “journalist” appears overly restrictive and to exclude journalists who do not have an employment agreement or individually based contractor agreement (thus excluding most freelancers), or who do not “continuously” (full-time) carry out this work. For journalists not covered by this definition, it appears impossible to register in the Media Register;
• Linking certain unrelated social benefits^[9] to inclusion in the Media Register risks being construed as a reward for “government-friendly” journalism;
• The composition and independence of the Media Development Agency, which decides on the journalists’ inclusion to or exclusion from the Register raise concerns. According to its Charter, the President of the Republic of Azerbaijan holds control over its activities. In particular, the Supervisory Board members of the Agency are appointed and dismissed by the President, and the President has the right to dissolve or reorganise the structure of the Agency;

• Article 14 of the Media Law provides for extensive restrictions on the types of information that may be published and/or disseminated by the media. For instance, there must be no libel, insults or hate speech (Article 14.1.9), fact and developments must be presented impartially and objectively, one-sidedness is not allowed (Article 14.1.11). According to Article 75.3.5 a journalist who disseminates information which does not meet the requirements of Article 14 of this Law three or more times in the course of a year, can be removed from the Media Register. While most restrictions outlined in Article 14 of the Law are not in themselves incompatible with Article 10, they are drafted in an ambiguous manner, leaving too much room for arbitrary interpretation, notably by the Media Development Agency as a regulatory body, and thereby lacking foreseeability.
• Although Article 6 of the Media Law provides that it is unacceptable to persecute and exert pressure on journalists in connection with the collection, preparation, editing, production and transmission of information, it does not seem that the law contains any provisions to enforce these prohibitions;

Moreover, information from other Council of Europe sources paints a worrying picture regarding the environment for journalists in practice. The Committee could note the recent declaration of the Council of Europe Commissioner for Human Rights which refers to the increasing repression faced by journalists and civil society members in Azerbaijan and the alerts on the Council of Europe’s Platform for the Safety of Journalists, which currently contains information on 23 journalists and other media actors in detention in Azerbaijan.^[10] This concerning context is supported by the recent Rule 9.2 submissions summarised above. 

Against this background, it is deeply regretted that the authorities provided no information for this meeting in reply to the Committee’s concerns. The Committee could call on the authorities to elaborate on concrete measures envisaged to amend the Media Law for its next examination of this group. It could also invite the authorities to consider delivering political messages, speaking out against harassment of journalists and other media actors to ensure their Article 10 rights are protected from interference by others, including by private individuals.

As to judicial measures, methodological guidelines issued by the Prosecutor General’s office, or training activities might also be envisaged to ensure an effective investigation of attacks against journalists. The authorities do not refer to any particular measure undertaken in this regard. The information provided is limited to the training undertaken by the Prosecutor General’s Office on the protection of the right to private life of individuals. It is however important that to achieve progress in this group, special attention should be paid to the investigation of attacks against journalists.

The authorities may therefore be reminded that they are under an obligation to adopt a proactive approach to ensure that the motives behind attacks against journalists are sufficiently investigated. To this end, they may be called on to inform the Committee of other measures which could be taken to prevent similar violations.

Finally, having regard to the Court’s findings in Khadija Ismayilova (No. 3) and Abbasaliyeva, it is also necessary that judicial measures are taken to improve the practice of domestic courts. In particular this relates to judicial considerations as to the contribution of the publication to a debate of general interest, the degree to which the person affected was well-known and the subject of the report, the prior conduct of the person concerned, the content, form and consequences of the publication (see Von Hannover v. Germany (No. 2) [GC], Nos. 40660/08 and 60641/08, §§ 109-113, ECHR 2012).

The three sample decisions of the Supreme Court submitted by the authorities, while interesting, do not allow any conclusions to be drawn about the general practice of the courts in conducting an adequate balancing exercise between the right to respect for private life and reputation and the right to freedom of expression. The authorities could be invited to take measures to ensure that the practice of the Supreme Court develops into a well-established case-law of all domestic courts. To this end, the authorities may be encouraged to make full use of the technical support and expertise available through the Council of Europe. In particular, the Council of Europe project “Promoting media professionalism and freedom of information in Azerbaijan” may provide a useful forum to address the need for any legislative and/or institutional reforms.

The Committee may ask the authorities to submit all the outstanding information requested above both in respect of individual and general measures, in an updated consolidated action plan or report, in good time for its March 2025 DH meeting. It could also instruct the Secretariat to prepare a draft interim resolution to be considered at its March 2025 meeting, if no tangible progress is achieved in the individual measures and general measures required in the present cases by then.

Financing assured: YES