Case Summary and Outcome

The European Court of Human Rights unanimously held that Azerbaijan violated the right to privacy and freedom of expression of  journalist Khadija Ismayilova. The case concerned the online dissemination of two intimate videos recorded covertly in her bedroom, receipt of a threatening letter, and disclosure of sensitive personal information in an investigation report, all allegedly part of an intimidation campaign. The Court found that the Azerbaijan authorities ran an ineffective and flawed investigation into crimes against Ismayilova and therefore the State failed in its positive obligations protect her journalistic freedom of expression and her private life.

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Facts

The applicant, Ms Khadija Rovshan qizi Ismayilova, is an Azerbaijani national who resides in Baku. Since 2005 she has worked as an investigative journalist for the Azerbaijani service of Radio Free Europe/Radio Liberty (“Azadliq Radio”), in the capacity of staff reporter and later director. She also was a regional coordinator and journalism trainer for the Organized Crime and Corruption Reporting Network. Over the years her reporting has focused on corruption and violations of human rights for which she has won numerous international awards. In the years leading up to the present case, she published a range of investigative stories uncovering alleged ties between the President of Azerbaijan and his family members and   lucrative commercial ventures hidden behind off shore companies. According to Ismayilova, her critical reporting on the President and government corruption has resulted in threats by officials and intimidation through pro-government media.

On 7 March 2012, Ismayilova received a letter from Moscow which contained 6 graphic photos of her engaging in sexual acts with her then boyfriend along with the threatening message: “Whore, refrain from what you are doing, otherwise you will be shamed!” The photos appeared to be taken from a video recorded by a hidden camera in her bedroom. The photos were also sent to two opposition newspapers but were not published. In response, Ismayilova posted on social media that she would neither stop her reporting, nor be silenced by such intimidation techniques.

On 9 March 2012, Ismayilova reported the incident and requested a formal investigation into what she believed to be an attempt to blackmail her due to her professional activities and she requested security measures be taken to protect her.

Subsequently, the impugned video, a look-alike video, and a third actual video taken from the same hidden camera in her bedroom were posted online. Various newspapers reported on the videos, claiming they were evidence of her immoral character, lack of professionalism and anti-government bias.

The Prosecutor General’s office launched criminal proceedings on 15 March 2012 for breach of inviolability of private life under Article 156 of the Criminal Code. [para. 22]

After an inspection of her flat, Ismayilova found the hidden cameras in her bedroom as well as data wires and a newly installed second telephone line. At Ismayilova’s request, investigators from the Baku City Prosecutor’s office, along with an engineer from the state owned telecommunications company, Mr. N.J., came to her flat to view the equipment. According to Ismayilova, Mr. N.J. admitted in front of all the officials that he had installed the second telephone line at the instruction of his supervisor. She further alleged that the official record of this conversation, and the investigator’s request that N.J. remove the phone line, never made it into files pertaining to the investigation. Further, the Government neither released any documents related to an official interview with Mr. N.J. about who had ordered him to install the wiring, nor submitted any reports to the Court detailing the investigative steps taken.

In early April 2012, after numerous failed attempts to get information on the status of the investigation, Ismayilova filed a complaint with the Baku City Prosecutor’s Office. On 26 April 2012, the Prosecutor’s Office issued a public status report noting steps they had taken and claiming that Ismayilova and her lawyer had spread falsehoods about the investigators incompetence which was negatively impacting public opinion. The report also disclosed revealing personal details about friends and family members of Ismayilova, which she had given to the Prosecutors to aid the investigation with the understanding that it would be kept confidential. In response, Ismayilova lodged a complaint that the disclosure of such personal details was part of a “slander campaign” that “constituted an unlawful and unjustified interference with her right to respect for private life and freedom of expression,” which were in violation of Art. 32 of the Constitution, Art. 199 of the Code of Criminal Procedure, and Art. 8 of the European Convention. She requested a public apology and damages in the amount of 40,000 Azerbaijani manants (around $24,000) for emotional distress. In August 2013, on appeal, the Supreme Court ultimately upheld the lower court rulings which dismissed her claim.  [para. 56]

On 12 August 2013, Ismayilova lodged a complaint with the Sabail District Court against the prosecuting authorities and asked for compensation. She claimed that no progress had been made in a year and that their inactivity was unlawful. On 13 August 2013, the Sabil District Court found that it did not have the jurisdiction to hear the complaint. Three days later, on 16 August, The Baku City Prosecutor’s Office also refused Ismayilova access to the case file on the grounds that it was still an open investigation and rejected her request to have the criminal offense reclassified as a hindrance of a journalist’s lawful professional activity under Art. 163.1 of the Criminal Code. Ismayilova subsequently filed two additional complaints with the Sabil District Court, all of which were rejected. At the suggestion of the Sabil District Court, Ismayilova filed a complaint with the Baku Economic Administrative Court no. 1 which, on appeal, was finally rejected by the Supreme Court on 6 February 2014.

Ismayilova was arrested in December of 2014 for inciting a colleague to commit suicide and then charged in February 2015 for corruption related to her work with Azadliq Radio between 2008 and 2010. A separate application has been filed before the ECtHR (no. 30778/15) in relation to those charges. On 25 May 2016, Ismayilova was finally given a suspended sentence of 5 years and released from prison, but only after several appeals of a seven and a half year prison sentence.

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Decision Overview

Ismayilova brought the complaint alleging that her rights under Articles 6 (right to a fair trial), 8 (right to respect for private life), 10 (freedom of expression) and 13 (right to effective remedy) had been violated due to repeated intrusions into her private life to intimidate her from performing her journalistic duties and a failure by the authorities to effectively investigate those intrusions. [para. 3]

The Court first presented background information on the situation in Azerbaijan. It referenced Recommendation CM/Rec(2016)4 of the Committee of Ministers to member states on the protection of journalists and other media actors to call attention to the increasing dangers of practicing journalism, especially for female journalists who are more susceptible to “sexist, misogynist and degrading abuse” which are more and more often taking place online. The Recommendation was also quoted to note that states have a positive obligation to protect journalists and prevent such abuses which can have a “grave chilling effect on freedom of expression.” [para. 69]

The Court also presented extracts from the Report by the Commissioner for Human Rights of the Council of Europe which concerned the deteriorating situation in Azerbaijan where “impunity prevails” and there is selective and unjustifiable criminal prosecution of journalists who are critical of the government. [para.71]

The third party interveners submissions documented how in recent years Azerbaijani “authorities had engaged, and continue to engage, in systematic repression of freedom of expression in the country, including through intimidation, targeting and persecution of journalists and voices critical of the government.” [para. 74] To back-up their claims they provided list of more than 8 journalists who had been attacked, arrested or detained while undertaking their professional duties. They further “argued that there was a positive obligation under Article 10 on member States to take necessary measures to prevent and investigate conduct designed to restrict journalistic activity.” [para. 18] Citing a list of relevant case law from the European Court, they stated that there was additionally a positive obligation under Article 8 to protect the right to private life, including through investigations into crimes.

Article 8

The Court next considered the alleged violation of Article 8 related to the threatening letter, covert intimate videos and their dissemination. The Court determined that the complaint must be examined from the standpoint of the State’s positive obligation under Art. 8, despite a lack of clear and convincing evidence that the state was complicit in the covert video recording in her home and its dissemination. The Court affirmed that States are required to deter “grave acts, where essential aspects of private life are at stake,” and ensure the effectiveness of any investigations. [para. 115]

The Court made particular note of the government’s lack of documentation relating to the investigation such as records of questioning, expert reports, records of examination of evidence, and its failure to provide the Court with full copies of the investigation file. [para. 124] The Court found that the investigation suffered from serious delays, failed to investigate the origins of the threatening letter from Moscow, the sources of the intimate videos posted online, whether there was a link between the publication of Ismayilova’s investigations and the impugned threats and the surveillance of her home. Hence the Court found there had been a violation of Article 8 as the authorities had failed in their positive obligation to protect the sanctity of her private life by running an effective investigation into the interferences of her private life. [para. 131]

The Court then turned to the allegation of the second violation of Article 8 in connection with the publication of the Status Report on the investigation. With regard to the disclosure in the Status report of sensitive personal information relating to individuals interviewed during the criminal investigation, the Court found that within the context of the case, the disclosure had to be considered as part of the obligation to protect private life. The release of this information only compounded the already egregious breach of privacy. Applying the three-part test, the Court found that the Government failed to demonstrate a legitimate aim or any necessity for the interference, and with the failure of those two prongs, it declined to assess its legality. Therefore, the Court held that the disclosure constituted an unjustified interference with Ismayilova’s right to respect for private life and resulted in a violation of Article 8.

Article 10

The Court determined that the complaint had to be heard within the context of State’s positive obligation under Article 10, which included not only a requirement to protect journalists but also to create a “favorable 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 authorities or by a significant part of public opinion, or even irritating or shocking to the latter.” [para. 158] The Court further stated that interferences with freedom of expression, such as those experienced by Ismayilova, can cause a significant “chilling effect,” and therefore under the circumstances of the present case, it was imperative to investigate whether there was a connection between those interferences and her reporting.

The Court took into consideration the reports submitted by the Commission for Human Rights of the Council of Europe and the third-party interveners. It specifically noted the dangerous environment in Azerbaijan for journalists and the “climate of impunity” which can undermine the “public watchdog” role of the media that enables democratic processes. The Court found that based on the evidence presented, there was “no other plausible motive” for the crimes committed against Ismayilova other than retaliation for her professional activities, which the authorities should have seriously considered during their investigation. In light of the aforementioned circumstances, the Court concluded that “Article 10 of the Convention required the respondent State to take positive measures to protect the applicant’s journalistic freedom of expression, in addition to its positive obligation under Article 8 of the Convention to protect her from intrusion into her private life.” [para. 165] Due to the failure of the State to create an “environment protective of journalism,” properly investigate the crimes and provide effective remedies for harassment, the Court found a violation of Article 10.

The Court awarded EUR 15,000 in respect of non-pecuniary damage and EUR 1,750 in respect of cost and expenses.

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