Violence Against Speakers / Impunity
Perozo and others v. Venezuela
Venezuela, Bolivarian Republic of
Closed Mixed Outcome
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The First Section of the European Court of Human Rights held that Azerbaijan violated the journalist Jafarov’s procedural rights under Article 3 of the European Convention on Human Rights. By failing to conduct an effective criminal investigation into a violent attack on the journalist, Azerbaijan failed to guarantee the rights and freedoms set forth in the Convention. The European Court of Human Rights stated that Azerbaijan has a general duty to conduct effective official investigations into an “arguable claim” of a violation of Article 3 of the Convention. This includes an effective investigation [para. 44]. The Court furthermore reiterated that States have a positive obligation to “create a favourable environment for participation in public debate by all the persons concerned, enabling them to express their opinions and ideas without fear” [para. 68].
Applicant Uzeyir Jafarov is a journalist who worked for the Gündəlik Azərbaycan newspaper in Azerbaijan. Jafarov often authored articles in which he criticised Azerbaijan’s security and defence policies and the activities of military officers. On 20 April 2007, the newspaper published an article by Jafarov, in which he criticized and accused an army colonel of being corrupt and of taking part in illegal activities. That day, Jafarov attended a hearing held as part of criminal proceedings against the editor-in-chief (see Fatullayev v. Azerbaijan, no. 40984/07, 22 April 2010). He then returned to the offices of the newspaper. When leaving the office in the evening, two men violently attacked Jafarov. He was seriously injured and taken to the hospital.
On 23 April 2007, the Yasamal District Police Office started a criminal investigation into the attack. Both Jafarov and his colleagues recognized a police officer (N.R.) of the Yasamal District Police Office to be one of Jafarov’s assailants, as the police officer was present at the hearing of the editor-in-chief on 20 April 2007. Azerbaijan’s Minister of Internal Affairs declared in an interview that the attack was a sabotage, organised by Jafarov himself. Jafarov claimed the police authorities failed to conduct an effective investigation, and lodged a complaint with the Prosecutor General. On 23 June 2007 the investigator suspended the criminal proceedings arguing it had not been possible to “determine who assaulted the applicant” [para 24]. The authorities did not inform Jafarov about this decision. The authorities did not organise an identity parade and face-to-face confrontation with N.R. and did not question any of Jafarov’s colleagues. Jafarov filed a new complaint with the Prosecutor General on 1 October 2007 arguing that the failed investigation into his attack breached his rights under Articles 3 and 10 of the European Convention on Human Rights (ECHR). After the Yasamal District Court dismissed the complaint, and the Baku Court of Appeal upheld the Court’s decision, Jafarov filed an application against the Republic of Azerbaijan (defendant) at the European Court of Human Rights (ECtHR) under Article 34 of the ECHR.
Jafarov alleged a breach of his rights under Article 3 of the ECHR which prohibits torture and inhuman or degrading treatment or punishment. He claimed that the Azerbaijani authorities “failed to carry out an effective investigation”, and that “State agents had been behind the attack on him” [para. 37]. Jafarov furthermore alleged a breach of his freedom of expression rights under Article 10 ECHR, arguing he had been subject to a violent physical attack “because of his journalistic activity” [para 63].
Judge Isabelle Berro (Section President) delivered the unanimous judgment of the ECtHR (First Section).
The first issue for the Court’s determination was whether the Azerbaijani government had violated Jafarov’s rights under Article 3 of the ECHR, by failing to carry out an effective investigation into the attack, allegedly carried out by State agents. The second issue for the Court’s determination was whether the failed investigation violated Jafarov’s freedom of expression rights under Article 10 of the Convention.
Jafarov argued that State agents had been behind the attack on him and that by failing to order an official identity parade, question his colleagues, obtain video recording from security cameras and by failing to inform him about the course of the court proceedings, Azerbaijan violated his rights under Article 3 ECHR. Jafarov furthermore claimed he had been attacked because of his journalistic activities, that that the failure to investigate the attack amounted to a violation of Article 10 of the ECHR, and that the Azerbaijani government had “failed to comply with their positive obligations”. The Azerbaijani government argued that Jafarov lacked evidence, that it was pure speculation that State agents had been behind the attack and that the government could not be held responsible for actions of a police officer acting out of his official capacity.
Referring to Assenov and Others v. Bulgaria, 28 October 1998 and Labita v. Italy, no. 26772/95, 6 April 2000, the Court explained that under Article 1 ECHR, States have to ensure that citizens are guaranteed the rights and freedoms set forth in the Convention under Article 1 ECHR. This implies that States have a general duty to conduct an effective official investigation into an arguable claim of a breach of Article 3 ECHR [para. 44]. An investigation required by Article 3 ECHR is effective if it is “independent and impartial in law and in practice” [para. 45] (see Najafli v. Azerbaijan, no. 2594/07, 2 October 2012, and Layijov v. Azerbaijan, no. 22062/07, 10 April 2014) and if it is thorough [para. 46]. It should be “capable of leading to the identification and punishment of those responsible” [para. 52]. The Court found numerous shortcomings in the investigation. The Court pointed to the fact that whilst Jafarov claimed to have been attacked by one of the police officers from the Yasamal District Policy Office, the case was still examined by an investigator from the same office [para. 49]. Moreover, the domestic authorities “failed to take all steps reasonably available to them to secure the evidence concerning the attack” by not ordering an identity parade and questioning Jafarov’s colleagues [para. 50]. The Court stressed that the Minister’s comments showed that the authorities did not prioritize the investigation into the truth about the circumstances of the attack [para. 52]. Therefore, the Court held that Jafarov’s procedural rights under Article 3 of the Convention had been violated.
The Court held that the journalist’s substantive rights under Article 3 of the Convention had not been violated. In this regard, the Court stated it could not establish “beyond reasonable doubt” that State agents had been behind the attack [para. 60], as there was not sufficient supporting evidence, due to the authorities’ failure to effectively investigate the attack at the time.
Citing Dink v. Turkey, nos. 2668/07, 6102/08, 30079/08, 7072/09 and 7124/09, 14 September 2010, the Court reiterated that Article 10 ECHR creates the positive obligation for States to actively provide a “favourable environment for participation in public debate by all the persons concerned, enabling them to express their opinions and ideas without fear” [para. 68]. The Court held that it was not sufficiently clear that the purpose of the attack was specifically to impede Jafarov’s journalistic freedom [para. 69]. Moreover, the Court noted that the journalist’s allegations of a breach of Article 10 ECHR were based on the same facts as those already examined under Article 3 of the Convention. As the Court had already found a violation of Article 3 under its procedural limb, based on these facts, it did not find it necessary to examine the complaint of a breach of Article 10 ECHR.
In conclusion, the Court unanimously held that Azerbaijan violated Jafarov’s procedural rights under Article 3 of the ECHR and ordered Azerbaijan to pay Jafarov EUR 10,000 in non-pecuniary damages and EUR 4,400 “in respect of costs and expenses.”
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
Mixed outcome. The Court distinguishes this case from other cases where violence against a journalist amounted to a violation of Article 10 ECHR. The Court referred inter alia to the Özgür Gündem v. Turkey, no. 23144/93, 2000 case, where the state violated its positive obligations under Article 10 ECHR as the domestic authorities were aware of a series of violent actions against a newspaper and persons associated with it, but “did not take any action to protect the newspaper and its journalists” [para. 70]. Jafarov and the newspaper had not previously been subject to violence, nor had they previously requested the authorities for protection. The Court did hold Azerbaijan accountable for not conducting an effective investigation, establishing a breach of Article 3 of the Convention.
Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.
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