CASE OF AZADLIQ AND ZAYIDOV v. AZERBAIJAN

FIRST SECTION

CASE OF AZADLIQ AND ZAYIDOV v. AZERBAIJAN

(Application no. 9028/09)

JUDGMENT
 

STRASBOURG

16 May 2024

This judgment is final but it may be subject to editorial revision.

In the case of Azadliq and Zayidov v. Azerbaijan,

The European Court of Human Rights (First Section), sitting as a Committee composed of:

 Krzysztof Wojtyczek, President,
 Lətif Hüseynov,
 Erik Wennerström, judges,
and Liv Tigerstedt, Deputy Section Registrar,

Having regard to:

the application (no. 9028/09) against the Republic of Azerbaijan lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 5 November 2008 by a newspaper published in Azerbaijan, Azadlıq, and by an Azerbaijani national, Mr Ganimat Salim oglu Zayidov (Qənimət Səlim oğlu Zayidov), (“the applicants”), who were represented by Mr R. Hajili, a lawyer based in Strasbourg, and Mr E. Sadigov and Mr K. Agaliyev, lawyers based in Azerbaijan;

the decision to give notice of the complaints concerning Article 10 of the Convention to the Azerbaijani Government (“the Government”), represented by their Agent, Mr Ç. Əsgərov;

the parties’ observations;

Having deliberated in private on 9 April 2024,

Delivers the following judgment, which was adopted on that date:

SUBJECT MATTER OF THE CASE

1.  The case, brought by a newspaper and its chief editor, concerns an allegedly unjustified and disproportionate interference with their right to freedom of expression under Article 10 of the Convention on account of sanctions imposed following publication in the newspaper of material found by the domestic courts to be defamatory of the Ministry of Defence (“the Ministry”).

2.  Azadlıq (“the applicant newspaper”) is a newspaper in circulation in Azerbaijan since 1989. The second applicant, Mr Zayidov, was a journalist and chief editor of the applicant newspaper (for more details, see Azadlıq and Zayidov v. Azerbaijan, no. 20755/08, §§ 5-8, 30 June 2022).

3.  In its edition of 14 February 2007, the applicant newspaper published an article entitled “The Mystery of Cheap Meat in the Ministry of Defence”, which alleged that the Ministry was importing low-quality and potentially radioactive meat for soldiers, from Chernobyl, Ukraine, at a price that was significantly below the market value. The article was authored by the applicant newspaper’s “Department of Information”.

4.  On 16 February 2007 the Ministry lodged a civil defamation claim against the second applicant and the head of the “Department of Information”, arguing that the article contained false factual information about the armed forces, which damaged its professional reputation and lowered the morale of its troops. The Ministry requested that the defendants be ordered to publish a retraction and to pay compensation in respect of non-pecuniary damage in a total amount of 150,000 Azerbaijani manats (AZN – approximately 114,000 euros (EUR) at the material time).

5.  The applicants, who were represented at the court hearing by a lawyer, denied that the information published in the articles was false but failed to provide any source for that information. They also argued that the Ministry did not have standing under domestic law to lodge a civil defamation claim.

6.  On 18 April 2007 the Yasamal District Court upheld the claim in part and ordered the applicant newspaper to publish a retraction and an apology and to pay AZN 20,000 (approximately EUR 15,200 at the material time) in respect of non-pecuniary damage to the Ministry. The operative part of the judgment concerned solely the newspaper and did not impose any sanctions on the second applicant.

7.  The first-instance court concluded that the defendants had been unable to provide any proof of the veracity of the allegations made in the article and that it therefore contained information damaging to the Ministry’s professional reputation.

8.  The applicants appealed in the newspaper’s name, arguing that the Ministry could not be considered a legal entity and therefore had no standing under the relevant provisions of the Civil Code to claim damage to professional reputation; that the domestic courts had failed to make a distinction between facts and value judgments; and that the courts had not taken into account the wider limits of criticism allowed by the Convention with regard to government institutions.

9.  The applicants also complained that the damages awarded by the first‑instance court were excessive. They argued that the applicant newspaper was not in a position to pay such a large sum in damages as it was in dire financial circumstances, selling only half of its print runs and being unable to pay its employees, following a number of court rulings ordering the confiscation of its property for failure to pay taxes.

10.  By a judgment of 7 November 2007, the Baku Court of Appeal partly allowed the appeal, reducing the amount of damages to AZN 10,000 (approximately EUR 7,600 at the material time). However, the appellate court did not provide any reasons as to why it had decided to award that particular amount.

11.  The applicants lodged a cassation appeal, reiterating their previous arguments, including those relating to the applicant newspaper’s inability to pay the amount awarded in damages because of its financial difficulties.

12.  By a final decision of 7 May 2008, the Supreme Court upheld the appellate court’s judgment, reiterating its reasoning. It did not expressly address the applicants’ arguments concerning the proportionality of the interference.

13.  The applicants complained that there had been an unjustified and disproportionate interference with their right to freedom of expression under Article 10 of the Convention on account of sanctions imposed following publication in the applicant newspaper of material found by the domestic courts to be defamatory of the Ministry.

THE COURT’S ASSESSMENT

ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION

14.  As regards the second applicant in the present case, the Government argued that he could not claim to be a victim of the alleged breach of Article 10 of the Convention because the decisions of the domestic courts had concerned only the rights and duties of the applicant newspaper.

15.  The Court observes that although the Ministry had lodged a civil defamation claim against the second applicant, the decisions of the domestic courts concerned solely the applicant newspaper. The courts’ decisions did not impose any sanctions on the second applicant; and his participation in the proceedings was limited to being a representative of the applicant newspaper. The latter possessed a legal personality as a registered media entity and consequently had its own rights and responsibilities, distinct from those of its founder and editor-in-chief. Moreover, the second applicant did not argue that he was the author of the impugned article. In such circumstances, it cannot be said that the domestic proceedings affected him as a journalist. The Court consequently finds that the second applicant cannot claim to be a victim of the alleged violation of Article 10 of the Convention. This part of the application is thus incompatible ratione personae with the provisions of the Convention and the Protocols thereto within the meaning of Article 35 § 3 (a) and must be rejected in accordance with Article 35 § 4 (compare Khural and Zeynalov v. Azerbaijan, no.  55069/11, §§ 29-30, 6 October 2022).

16.  In so far as the applicant newspaper is concerned, this complaint is neither manifestly ill-founded nor inadmissible on any other grounds listed in Article 35 of the Convention. It must therefore be declared admissible.

17.  It is undisputed by the parties that the judicial decisions given in the present case constituted an interference with the applicant newspaper’s right to freedom of expression. In order to be compatible with Article 10 of the Convention, such an interference must be “prescribed by law”, pursue one or more legitimate aims in the light of paragraph 2 of Article 10, and be “necessary in a democratic society” (see Karácsony and Others v. Hungary [GC], nos. 42461/13 and 44357/13, § 121, 17 May 2016).

18.  The Court notes that while Article 23 of the Civil Code confers the right on legal persons to bring civil defamation proceedings with a view to protecting their business reputation, Article 43.3 allows the Republic of Azerbaijan to participate in civil proceedings on an equal basis with other legal entities, through its bodies which are not legal entities. The Court observes that the claimant in the defamation proceedings under consideration was an executive authority of the Republic of Azerbaijan. The applicants argued that, as such, the Ministry had no right to claim damage to “business reputation” under Article 23 of the Civil Code.

19.  Moreover, the Government submitted that the interference complained of had pursued the legitimate aim of “the protection of the reputation and rights of others”. The applicants, however, argued that the Ministry could not claim to hold any “business reputation”.

20.  The Court notes that the impugned article concerned the Ministry as a whole and not any particular official. The defamation proceedings were also brought on behalf of the Ministry as a government body, not on behalf of any of its individual members who were “easily identifiable” (contrast Thoma v.  Luxembourg, no. 38432/97, § 56, ECHR 2001-III). In other words, the Ministry was not acting as a representative for its unnamed personnel but rather was representing its own interests in the form of prestige (compare Frisk and Jensen v. Denmark, no. 19657/12, § 49, 5 December 2017).

21.  Furthermore, it cannot be said that the Ministry had an “interest in protecting its commercial success and viability”, be it for “the benefit of shareholders and employees” or “for the wider economic good” (see Steel and Morris v. the United Kingdom, no. 68416/01, § 94, ECHR 2005-II) that would warrant legal protection.

22.  The Court has previously held that civil defamation proceedings brought, in its own name, by a legal entity that exercises public power may not, as a general rule, be regarded to be in pursuance of the legitimate aim of “the protection of the reputation ... of others” under Article 10 § 2 of the Convention (see OOO Memo v. Russia, no. 2840/10, § 47, 15 March 2022).

23.  Having regard to the above, the Court finds that there are reasons to doubt whether the interference in the present case was in accordance with the law and pursued the legitimate aim of “the protection of the rights of others”. However, even assuming that the above requirements were met, the interference was not, in any event, “necessary in a democratic society” for the following reasons (see, mutatis mutandis, Glukhin v. Russia, no. 11519/20, § 55, 4 July 2023).

24.  The general principles concerning the “necessity” of an interference, including its proportionality to the legitimate aim pursued, have been summarised in Khural and Zeynalov (cited above, §§ 37-49).

25.  In view of its finding below, the Court considers it unnecessary to examine some of the issues raised by the applicant newspaper in the present complaint, in particular whether the domestic courts made a distinction between value judgments and factual statements, or whether they duly took into account the wider limits of criticism allowed by the Convention with regard to government institutions (compare Khural and Zeynalov v. Azerbaijan (no. 2), no.  383/12, § 64, 19 January 2023).

26.  The Court notes that, in addition to ordering the publication of a retraction and an apology, the domestic courts ordered the applicant newspaper to pay AZN 10,000 (approximately EUR 7,600 at the material time) in compensation. In the appeals to the higher courts, the applicant newspaper argued that that amount was excessive given its low circulation and profits and its dire financial situation at that point in time. In support of that argument, it provided some information showing that it had been unable even to pay off its tax debts (see paragraph 9 above and also, as relevant background, Azadlıq and Zayidov, cited above, §§ 7 and 24).

27.  Accordingly, the applicant newspaper raised relevant arguments showing prima facie that the amount awarded was disproportionately high in the circumstances of the case. Nevertheless, the domestic courts’ judgments remained silent in respect of the arguments raised by the applicant newspaper in that respect. No reasons were provided by the domestic courts to substantiate their decisions to award that particular amount; and it has not been demonstrated that they carried out any adequate assessment of the proportionality of the sanction imposed (ibid., § 49).

28.  In view of the above, the Court considers that no reasons were provided to justify the severity of the sanction imposed on the applicant newspaper, which did not appear to bear a reasonable relationship of proportionality to the legitimate aim pursued. Thus, the domestic courts failed to provide “sufficient” reasons to justify the interference with the applicant newspaper’s right to freedom of expression. It follows that the interference was not “necessary in a democratic society”.

29.  There has accordingly been a violation of Article 10 of the Convention.

APPLICATION OF ARTICLE 41 OF THE CONVENTION

30.  The applicant newspaper claimed 7,616 euros (EUR) in respect of pecuniary damage, representing the amount it had been ordered to pay in damages pursuant to the domestic courts’ decisions. It also claimed EUR 4,300 in respect of costs and expenses incurred before the domestic courts and before the Court.

31.  The Government contested the amounts as excessive and unsubstantiated. It also submitted that the applicant newspaper had never paid the amount it had been ordered to pay by the domestic courts.

32.  The Court rejects the applicant newspaper’s claim in respect of pecuniary damage as it has not provided any evidence demonstrating that it had actually paid the amount awarded to the Ministry and, accordingly, that any pecuniary loss had been suffered (see Azadlıq and Zayidov, cited above, § 55). As to the fact that the domestic decisions nevertheless remain enforceable, the Court notes that the domestic law provides for the possibility of reopening the domestic proceedings following a finding by the Court of a violation of the Convention (ibid., § 56).

33.  Having regard to the documents in its possession, the Court considers it reasonable to award EUR 1,000 covering costs under all heads, plus any tax that may be chargeable to the applicant newspaper.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

(a)  that the respondent State is to pay the applicant newspaper, within three months, EUR 1,000 (one thousand euros), plus any tax that may be chargeable to the applicant newspaper, in respect of costs and expenses, to be paid directly into the bank account of the applicants’ representative, Mr R. Hajili;

(b)  that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

Done in English, and notified in writing on 16 May 2024, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

 Liv Tigerstedt Krzysztof Wojtyczek
 Deputy Registrar President