Case Summary and Outcome

The Third Section of the European Court of Human Rights held that Azerbaijan violated articles 6 §§ 1 and 3, 7, 10, and 18 of the European Convention on Human Rights (ECHR). The case concerned the criminal prosecution of Khadija Ismayilova, an investigative journalist known for exposing corruption among high-ranking Azerbaijani officials, who had been charged with incitement to suicide, embezzlement, illegal entrepreneurship, tax evasion, and abuse of power following a complaint by a former colleague. Although she was acquitted of some charges, domestic courts ultimately convicted her of illegal entrepreneurship for conducting journalistic activities without accreditation and of tax evasion—sentencing her to imprisonment later reduced to a suspended sentence. The Court held that the domestic courts applied the relevant criminal provisions in an arbitrary and unforeseeable manner and failed to adequately address the applicant’s key arguments, thereby violating the principles of fair trial and legality under articles 6 and 7 of the ECHR. It further found that the criminal proceedings constituted an unlawful interference with Ismayilova’s freedom of expression and concluded that the prosecution had been used as a tool to silence and punish her for her investigative journalism, in violation of Articles 10 and 18 of the Convention.

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Facts

Khadija Ismayilova is a renowned investigative journalist and civil society activist in Azerbaijan who became widely known for her reporting on alleged corruption and the business activities of high-ranking public officials. In 2007, she began working as a freelance journalist for the Baku bureau of the Azerbaijani service of Radio Free Europe/Radio Liberty (“RFE/RL”), locally known as Azadliq Radio. RFE/RL operated as a non-profit international broadcasting organization headquartered in Prague and funded by the United States Congress. On July 1, 2008, Ismayilova was recruited to the Baku bureau as Acting Head under a fixed-term employment contract. On July 1, 2009, she was formally appointed Head of the bureau, and her employment contract was extended. On October 1, 2010, her employment contract with RFE/RL was terminated, after which she continued to collaborate with the bureau as a freelance journalist until December 2014.

On October 20, 2014, T.M., a former colleague of Ismayilova at Azadliq Radio, attempted suicide. On October 24, 2014, the Prosecutor General’s Office instituted criminal proceedings under Article 125 of the Azerbaijani Criminal Code for incitement to suicide. On November 25, 2014, T.M. filed a complaint with the Prosecutor General’s Office alleging that Ismayilova incited him to attempt suicide. On December 5, 2014, the authorities formally charged Ismayilova under Article 125 and placed her in pre-trial detention.

On February 13, 2015, prosecutors brought additional charges against Ismayilova under several provisions of the Criminal Code, including Article 179.3.2 (large-scale embezzlement), Article 192.2.2 (illegal entrepreneurship involving large income), Article 213.1 (tax evasion), and Article 308.2 (aggravated abuse of power). The prosecution alleged that while serving as Head of the Baku bureau of Azadliq Radio, Ismayilova abused her authority by employing several individuals under civil service contracts rather than employment contracts. According to the prosecution, these service contracts were taxed at a simplified rate of 4 percent under the Civil Code, whereas employment contracts under the Labor Code were subject to a personal income tax rate of 14 percent. The authorities alleged that by using service contracts instead of employment contracts, Ismayilova caused financial damage to the State in the amount of 17,992.60 Azerbaijani manats (AZN) (approx. 17,107 USD at the material time).

The prosecution further alleged that Ismayilova engaged in illegal entrepreneurial activity while acting as Head of the Baku bureau of Azadliq Radio; for example, by continuing broadcasting operations despite the broadcasting license, issued by the National Television and Radio Council, having expired on January 1, 2008.

Additionally, the prosecution alleged that after October 1, 2010, Ismayilova continued working for Azadliq Radio without accreditation from the Ministry of Foreign Affairs as a representative of foreign media, as required by the Law on Media. According to the authorities, this conduct constituted entrepreneurial activity without State registration within the meaning of Article 192 of the Criminal Code. The prosecution alleged that between July 1, 2008, and December 1, 2014, Ismayilova generated income through such activities by receiving and distributing payments to herself and other bureau staff, which were characterized as disguised salaries and service fees totaling AZN 335,880.54 (approx. 319,368 USD at the material time.)

The authorities also alleged that during the period from July 1, 2008, to October 1, 2010, while serving as Head of the Baku bureau, Ismayilova failed to pay profit tax for AZN 45,145.63 (approx. 56,206 USD at the material time). This allegation was based primarily on an interim audit report prepared by the Ministry of Taxes on January 19, 2015, at the request of the prosecution, as well as a forensic accounting report dated February 13, 2015. 

On September 1, 2015, the Baku Court of Serious Crimes acquitted Ismayilova of the charge of incitement to suicide for lack of evidence. However, the Baku Court convicted her of the remaining charges under Articles 179.3.2, 192.2.2, 213.1, and 308.2 of the Criminal Code. The Baku Court sentenced her to seven and a half years’ imprisonment and imposed an additional three-year prohibition on holding managerial or financial positions in public or local self-government bodies. The Baku Court relied in part on the tax audit and forensic accounting reports, as well as testimony from the authors of those reports and various banking documents.

Ismayilova appealed the judgment, arguing that the charges were unfounded and that the criminal proceedings were linked to her investigative journalism exposing corruption among senior government officials. She further contended that after October 1, 2010, she worked as a freelance journalist rather than as an employee or representative of Azadliq Radio and that accreditation with the Ministry of Foreign Affairs was not a legal requirement for conducting journalistic activities—but merely a mechanism for facilitating access to information. 

On November 25, 2015, the Baku Court of Appeal upheld the conviction and repeated the reasoning of the trial court. The Court of Appeal concluded that Ismayilova engaged in illegal entrepreneurial activity by continuing broadcasting operations without a valid license and by working without accreditation as a representative of foreign media. It also held that she was responsible for under-reporting and failing to pay the profit tax in the amount determined by the audit. The Court of Appeal did not specifically address several arguments raised by Ismayilova.

Ismayilova subsequently filed a cassation appeal with the Supreme Court of Azerbaijan. On May 25, 2016, the Supreme Court partially quashed the lower courts’ decisions. It found that the elements of the offenses under articles 179.3.2 (embezzlement) and 308.2 (abuse of power) had not been established, and also overturned the portion of the conviction for illegal entrepreneurship related to broadcasting without a license. However, the Supreme Court upheld Ismayilova’s convictions for illegal entrepreneurship in light of her journalistic activities without accreditation and for tax evasion. The Supreme Court reduced her sentence to three and a half years’ imprisonment, suspended on probation for five years, and ordered her release from detention. As a condition of probation, Ismayilova was required to notify authorities before changing her place of residence, which effectively restricted her ability to travel abroad.

Following legislative amendments to Article 192 of the Criminal Code on May 6, 2016, Ismayilova applied to the Baku Court of Serious Crimes requesting that her conviction for illegal entrepreneurship be annulled. She argued that the amendment clarified that “State registration” referred specifically to tax registration and that she had been properly registered as a taxpayer. On August 8, 2016, the Baku Court partly granted and partly dismissed her request. It rejected her interpretation of the amendment but reclassified the offense under Article 192.1 because the income attributed to the relevant activity did not meet the newly defined threshold for “large amount.” The Baku Court reduced the sentence for that charge to four months’ imprisonment and reduced her total sentence to two years and three months’ imprisonment, suspended on probation.

After further appeals, the Supreme Court issued a final decision on February 16, 2017, upholding the lower court’s ruling. The Supreme Court concluded that the amendment to Article 192 did not limit the concept of “State registration” solely to tax registration and held that foreign media representatives were still required under the Law on Media to obtain accreditation through the Ministry of Foreign Affairs. The Supreme Court further held that Ismayilova’s journalistic activities without accreditation generated income exceeding the statutory threshold and therefore constituted illegal entrepreneurship under the Criminal Code. The Supreme Court, in its conclusion, confirmed the validity of her conviction and the suspended sentence imposed.

Aggrieved, Ismayilova filed an application before the European Court of Human Rights (ECtHR) alleging violations under articles 6 §§ 1 and 3 (b), (c) and (d) and Articles 7, 10 and 18 of the European Convention on Human Rights (ECHR). 

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Decision Overview

The Third Section of the European Court of Human Rights delivered the decision. The primary issue before the Court was whether Ismayilova’s conviction for illegal entrepreneurship and tax evasion had a lawful and foreseeable legal basis under domestic law, and whether the criminal proceedings against her violated her rights under articles 6, 7, 10, and 18 of the Convention. 

On the violation of freedom of expression (Article 10 read with Article 18)

Ismayilova contended that her criminal conviction constituted an unjustified interference with her right to freedom of expression under Article 10 of the Convention. She argued that the charges of illegal entrepreneurship and tax evasion were baseless and used as a pretext to punish her for her investigative journalism, particularly her reporting on alleged corruption among members of the ruling elite. She maintained that the proceedings against her had been politically motivated and had formed part of a broader campaign of harassment intended to silence her critical voice and prevent her from continuing her investigative work. She further submitted that the interference was not prescribed by law, did not pursue a legitimate aim, and was not necessary in a democratic society, emphasizing that the proceedings had been marked by procedural irregularities and produced a chilling effect on journalists and public debate in Azerbaijan. 

On the other hand, the State submitted that Ismayilova’s complaint was of a speculative nature and unsubstantiated. It maintained that there was no interference with Ismayilova’s rights under Article 10 of the Convention and that she had been convicted by the domestic courts in accordance with the Criminal Code.

The Court first examined whether Ismayilova’s criminal conviction constituted an interference with her right to freedom of expression under Article 10 of the ECHR. It observed that the applicant was convicted for illegal entrepreneurship and tax evasion in connection with her journalistic work and that these measures directly affected her ability to impart information and continue her investigative activities. The ECtHR therefore concluded that the criminal proceedings and resulting conviction were an interference with the applicant’s freedom of expression, particularly because the measures were closely linked to her work as an investigative journalist.

In assessing the lawfulness of the interference, the Court referred to its earlier findings under articles 6 and 7 of the Convention (explained further below). It noted that the domestic courts interpreted the relevant provisions of the Criminal Code and the Law on Media in an arbitrary and unforeseeable manner when they concluded that the applicant’s freelance journalistic activity without accreditation constituted illegal entrepreneurship. The ECtHR held that the interference was therefore not “prescribed by law” within the meaning of Article 10. Since the legal basis for Ismayilova’s conviction was fundamentally flawed, the interference could not be justified under the permissible restrictions listed in Article 10(2) ECHR.

The Court further considered the context in which the criminal proceedings had been initiated and conducted. It examined Ismayilova’s argument that the prosecution had been politically motivated and designed to punish her investigative reporting. In doing so, the Court relied on its previous findings in Khadija Ismayilova v. Azerbaijan (no. 2), where it determined that the authorities’ actions against Ismayilova were aimed at silencing and punishing her for her journalistic activities. Building on those earlier conclusions, and evaluating the circumstances of the present case, the ECtHR determined that the criminal charges and conviction bore a clear connection to the applicant’s professional work as a journalist and could not be separated from her investigative reporting.

The Court also examined the complaint under Article 18 of the Convention, taken in conjunction with Article 10, which concerned the alleged misuse of legal restrictions for purposes other than those prescribed by the Convention. On this point, it reiterated that Article 18 prohibits States from restricting Convention rights for ulterior purposes. Referring to its established jurisprudence on the misuse of power in criminal proceedings, the ECtHR concluded that the evidence in the present case demonstrated that the criminal prosecution pursued an ulterior objective. To it, the authorities used criminal law mechanisms not to enforce legitimate legal provisions but to silence and punish Ismayilova for her investigative journalism.

Accordingly, the Court held that there had been a violation of Article 10 of the Convention, considering the interference with Ismayilova’s freedom of expression had been unlawful and incompatible with the rule of law. It further found a violation of Article 18 taken in conjunction with Article 10, since the criminal proceedings had been initiated and maintained for the unauthorized purpose of suppressing Ismayilova’s journalistic activities and discouraging critical reporting on matters of public interest. 

On the violations of fair trial guarantees under Article 6 §§ 1 and 3, and the principle of legality under Article 7 of the ECHR

Moreover, the Court held that the criminal proceedings against Ismayilova violated fair trial guarantees under Article 6 of the Convention and the principle of legality under Article 7. Upon examining Article 7, the ECtHR emphasized that criminal law must be sufficiently accessible and foreseeable so that individuals can understand what conducts constitute a criminal offense. It held that the domestic courts interpreted the provisions on illegal entrepreneurship in an extensive and unforeseeable manner by equating Ismayilova’s freelance journalistic work without accreditation with “entrepreneurial activity without State registration.” The Court concluded that such an interpretation lacked a clear legal basis and constituted an arbitrary expansion of the criminal law, making it impossible for Ismayilova to reasonably foresee that her journalistic activities could lead to criminal liability. Consequently, the ECtHR determined that her conviction for illegal entrepreneurship violated the principle of nullum crimen sine lege protected by Article 7.

With respect to Article 6 §§ 1 and 3, the Court held that the criminal proceedings against Ismayilova were fundamentally unfair. The domestic courts failed to properly examine or respond to Ismayilova’s key arguments challenging the legal basis of the charges—particularly her objections concerning the interpretation of the law on accreditation and the calculation of alleged tax liabilities. The ECtHR observed that the judgments of the national courts relied on vague and formulaic reasoning and did not meaningfully address the defense’s submissions or the evidentiary issues raised. As a result, the judicial assessment of the case was manifestly arbitrary and undermined the fairness of the proceedings. The Court therefore concluded that Ismayilova had been denied a fair hearing, rendering the guarantees of Article 6 §§ 1 and 3 ineffective in her case. 

In conclusion, the Court held that Azerbaijan violated Article 7 of the Convention because Ismayilova’s conviction for illegal entrepreneurship had been based on an unforeseeable and arbitrary interpretation of domestic law. It further considered that Article 6 §§ 1 and 3 of the Convention was violated, determining that the criminal proceedings were fundamentally unfair since the domestic courts failed to adequately examine Ismayilova’s key arguments and relied on manifestly arbitrary reasoning. The Court also found violations of articles 10 and 18 of the ECHR, concluding that the criminal proceedings unlawfully interfered with Ismayilova’s freedom of expression and were instituted with the ulterior purpose of silencing and punishing her for her investigative journalism. 

Making an assessment on an equitable basis under Article 41 of the Convention, the ECtHR awarded Ismayilova EUR 12,000 for non-pecuniary damages, plus any tax that might be chargeable on that amount. 

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