The ECHR has found a violation of the requirements of Articles 8 and 10 of the Convention for the Protection of Human Rights and Fundamental Freedoms.

Заголовок: The ECHR has found a violation of the requirements of Articles 8 and 10 of the Convention for the Protection Сведения: 2019-09-27 13:49:09

The ECHR judgment of January 10, 2019 in the case of Khadija Ismayilova v. Azerbaijan (applications Nos. 65286/13 and 57270/14).
In 2013 and 2014, the applicant was assisted in preparing applications. Subsequently, the applications were consolidated and communicated to Azerbaijan.

In the case, the applicant successfully examined the inability of the authorities to protect her from unreasonable interference in her personal life related to her work as a journalist. The case has violated the requirements of Articles 8 and 10 of the Convention for the Protection of Human Rights and Fundamental Freedoms.


Circumstances of the case


The applicant, a journalist known for her investigations and critical attitude towards the authorities of the country, published a number of articles accusing the president and his family of corruption. In 2012, she received a letter with threats and a demand to stop her activities. Unidentified persons installed hidden cameras in her apartment without her knowledge and consent, and videos of an intimate nature that were distributed on the Internet were secretly filmed about her.

During the subsequent criminal investigation, the applicant complained that the investigating authorities had refused to carry out the obvious and initial investigative steps. In response, the prosecuting authorities published a report on the status of the investigation. This report stated that the applicant and her lawyer disseminated false information to the media and provided confidential personal information such as the names and addresses of her friends, relatives and colleagues.

The applicant complained that her rights guaranteed by Articles 8 and 10 of the Convention were violated due to the authorities' inability to protect her from undue interference in her personal life related to her work as a journalist.


QUESTIONS OF LAW


(a) Threatening letter, covert filming and distribution of intimate videos. The acts complained of by the applicant were grave and encroached on human dignity. In her case, there was a reliable connection between the applicant's professional activities and the interventions made, the purpose of which was to silence the applicant. In a situation where the applicant was known to the public precisely in connection with her journalistic activities, it was difficult to establish any other reason for the threats she received of public humiliation that she received than that associated with this activity. The absence of such a reason could be proved only if it were convincingly and definitively excluded as a result of an effective investigation. Accordingly, this aspect of the case attached the highest importance to the investigation of whether the outgoing threat was related to the applicant's professional activities and from whom she came. Although the applicant’s allegations that state officials could have committed the crime could not have been supported by evidence that complies with the standard of proof, the observance of which is necessary in order to conclude that the State’s negative obligations under Article 8 of the Convention have been violated, her arguments in this regard were, however, serious and could not be dismissed as untenable prima facie.

From the very beginning, the investigating authorities had several obvious clues, but they did not take sufficient measures in this regard. It was not convincingly proved that the investigating authorities duly obtained the testimony of an important witness or investigated any versions that appeared after the testimony was given. It follows from the materials of the case that during the first interrogation the investigator did not record properly and, perhaps, even actively avoided recording the witness testimonies, which were very important for the case. The case file does not contain information confirming that any measures were taken to identify the person who sent the applicant a threatening letter, the owners and / or operators of the websites where the videos were posted, as well as the identities of those who posted them.

Having regard to the deficiencies made by the authorities in the investigation of the applicant’s case and the general length of the proceedings, the Court concludes that the authorities failed to fulfill their positive obligations in order to ensure that the applicant’s personal life was adequately protected by an effective criminal investigation into a very serious interventions in her personal life.


RESOLUTION


In the case there was a violation of the requirements of Article 8 of the Convention (adopted unanimously).

(b) Publication of the investigation report by the authorities. A report on the progress of the investigation, published in the press by the criminal prosecution authorities, contained confidential personal information obtained during the investigation of the criminal case. The Azerbaijani authorities have not proved the legitimate aim or necessity of this intervention. It was possible to inform the public about the nature of the investigative actions taken by the authorities, while respecting the applicant's right to respect for her private life, which was of paramount importance in the context of the present case, given that the investigation itself had begun in connection with an unreasonable and gross interference in her personal life. The applicant’s situation itself required the authorities to proceed with caution so as not to aggravate an existing violation of her right to respect for her personal life.


RESOLUTION


In the case there was a violation of the requirements of Article 8 of the Convention (adopted unanimously).

Regarding compliance with article 10 of the Convention. The criminal acts committed against the applicant were apparently related to her activities as a journalist. No other convincing reasons for the harassment of which she was the victim have been cited and could not be revealed. The applicant repeatedly brought to the authorities her allegations that she had been the victim of an organized campaign in retaliation for her journalistic activities.

Under these circumstances, taking into account reports on the general situation related to freedom of speech in Azerbaijan, and the specific circumstances of the applicant’s case, threats of public humiliation and actions that led to her egregious and unreasonable interference in her personal life, or were related to her journalistic activities, or should have been considered by the authorities during the investigation as such. In this situation, Article 10 of the Convention required the respondent Government to take positive measures to protect journalistic freedom of expression, in addition to their positive obligations under Article 8 of the Convention, in respect of protecting the applicant from invading her personal life.

Although the Azerbaijani authorities launched a criminal investigation, there were significant omissions and delays. Moreover, the articles published in newspapers, which, according to the applicant, were pro-government, as well as the unjustified publication by the Azerbaijani authorities of additional information about the applicant’s personal life, further aggravated the situation, which was contrary to the spirit of protecting freedom of journalism.


RESOLUTION


In the case there was a violation of the requirements of Article 10 of the Convention (adopted unanimously).


COMPENSATION


In application of Article 41 of the Convention. The Court awards the applicant EUR 15,000 in respect of non-pecuniary damage.

 

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