CASE OF KHURAL AND ZEYNALOV v. AZERBAIJAN

THIRD SECTION

CASE OF KHURAL AND ZEYNALOV v. AZERBAIJAN

(Application no. 43946/14)

JUDGMENT
 

STRASBOURG

17 June 2025

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

In the case of Khural and Zeynalov v. Azerbaijan,

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

 Oddný Mjöll Arnardóttir, President,
 Lətif Hüseynov,
 Canòlic Mingorance Cairat, judges,
and Olga Chernishova, Deputy Section Registrar,

Having regard to:

the application (no. 43946/14) 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 26 May 2014 by a newspaper operating in Azerbaijan, Khural (Xural – “the first applicant”), and an Azerbaijani national, Avaz Tapdig oglu Zeynalov (Əvəz Tapdıq oğlu Zeynallı – “the second applicant”), who were represented by Mr E. Sadigov, a lawyer practising in Baku;

the decision to give notice of the complaint 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 27 May 2025,

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

SUBJECT MATTER OF THE CASE

1.  The first applicant, Khural, is a newspaper published in Baku. The second applicant, a founder and the editor-in-chief of Khural, was born in 1970 and lives in Baku.

2.  The application concerns civil proceedings instituted against the first applicant in connection with three articles it had published in 2011 concerning Baltika-Bakı (a large private brewing company which was well known in the country – “the company”), its brewery, Khirdalan Beer Factory, and the company’s director, A.T. The articles in question were entitled “What is happening in the entity known as Khirdalan Beer Factory?” (“‘Xırdalan pivə zavodu’ kimi tanınan qurumda nələr baş verir?”), “[A.T.] expected to be punished...” (“[A.T.-ın] cəzalandırılacağı gözlənilir...”) and “‘The Legend’ of the Khirdalan Beer [Factory] turned sour!” (“‘Xırdalan pivə’nin ‘Əfsanə’si qıcqırdı!”). They discussed a number of alleged unlawful activities and bad business and management practices on the part of the company and A.T.

3.  More precisely, the articles alleged

(i)  that the company had tried to sell poor-quality beer to its counterpart in Georgia;

(ii)  that A.T. had mistreated the company’s employees by threatening and insulting them;

(iii)  that A.T. had been dismissed from his post;

(iv)  that A.T. had paid money to certain media outlets (the article in question did not specify what the purpose of the alleged payments had been); and

(v)  that A.T. had purchased cars for his family members using “the people’s money” (by that, the article in question apparently suggested misuse of the company’s funds).

4.  On an unspecified date A.T. brought a civil action against the first applicant, arguing that the above-mentioned articles were defamatory. On 23 January 2012 the Narimanov District Court allowed the civil action. The first‑instance court held, giving brief reasoning, that the first applicant had abused its freedom of expression and had not complied with its duty to provide accurate and reliable information in accordance with journalistic ethics, as it had damaged A.T.’s reputation and failed to substantiate the allegations included in the articles with any evidence. The Narimanov District Court ordered the first applicant to issue an apology and retraction and to pay A.T. 50,000 Azerbaijani manats (AZN – which at the material time was equivalent to approximately 50,000 euros (EUR)) in respect of non-pecuniary damage, to be transferred to a home for disabled children, as requested by the claimant.

5.  The first applicant lodged an appeal, complaining that the first-instance court had made it bear an excessive burden of proof by requesting that it substantiate the allegations in question with evidence. It also argued briefly that it needed to protect the identities of its journalistic sources. The first applicant claimed in that regard that the second applicant was in possession of a list of the company’s employees who had served as the sources of the information in question (that list was never submitted to the domestic courts).

6.  On 28 June 2012 the Baku Court of Appeal partially quashed the judgment of the first-instance court by lowering the amount of compensation to AZN 25,000 (which at the material time was equivalent to approximately EUR 25,000). As to the substance of the case, the appellate court agreed with the reasoning and findings of the first-instance court.

7.  On 21 December 2012, following a cassation appeal by the first applicant, the Supreme Court quashed the appellate court’s judgment and remitted the case for re-examination. In a judgment dated 19 April 2013, the Baku Court of Appeal confirmed the amount of compensation at AZN 25,000. As to the rest, the appellate court’s reasoning was in essence similar to that of the first-instance court (see paragraph 4 above).

8.  On 26 November 2013, following a further appeal by the first applicant, the Supreme Court once again partially quashed the appellate court’s judgment, noting that it had not properly taken into consideration “the domestic courts’ [established] case-law concerning [awards of compensation in respect of non-pecuniary damage]” (“mənəvi ziyanın ödənilməsi ilə bağlı mövcud məhkəmə təcrübəsi”) and the first applicant’s “real possibilities to make the payment in respect of non-pecuniary damage” (“mənəvi ziyanın ödənilməsi ilə bağlı cavabdehin real imkanları”). Consequently, the Supreme Court lowered the amount of compensation to AZN 7,000 (approximately EUR 7,000 at the time). As to the substance of the case, the Supreme Court agreed with the reasoning and findings of the appellate court.

THE COURT’S ASSESSMENT

ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION

9.  The applicants complained that there had been an unjustified and disproportionate interference with their right to freedom of expression, in breach of Article 10 of the Convention.

10.  The Government argued that the second applicant could not claim to be a victim of the alleged violation of Article 10 because he had not been a party to the domestic civil defamation proceedings and because the decisions of the domestic courts had concerned only the rights and duties of the first applicant.

11.  The Government further submitted that the interference with the first applicant’s right to freedom of expression had been “prescribed by law”, had pursued a legitimate aim (namely, the protection of A.T.’s reputation and rights) and had been proportionate and necessary in a democratic society.

12.  The Court notes that in so far as the first applicant 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.

13.  As regards the second applicant, the Court observes that he was not a party to the domestic civil defamation proceedings and his participation in those proceedings was limited to being a representative of the first applicant. The only respondent party in those proceedings was the first applicant. The domestic courts’ decisions did not impose any obligations on the second applicant. Consequently, the Court finds that the second applicant cannot claim to be a victim of the alleged violation of Article 10 (compare Khural and Zeynalov v. Azerbaijan, no. 55069/11, §§ 12 and 26-30, 6 October 2022, and contrast Khural and Zeynalov v. Azerbaijan (no. 2), no. 383/12, §§ 13 and 28‑33, 19 January 2023). 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.

14.  The general principles concerning freedom of expression and defamation have been summarised in Bladet Tromsø and Stensaas v. Norway [GC] (no. 21980/93, §§ 58-60 and 66, ECHR 1999‑III); Khural and Zeynalov (cited above, §§ 37-49); and Khural and Zeynalov (no. 2) (cited above, §§ 41‑50, with further references).

15.  The statements made in the articles in the present case concerned the alleged breach of employee rights, A.T.’s alleged abuse of power and the allegedly poor quality of the well-known company’s produce. The Court notes that allegations to the effect that A.T. had engaged in morally questionable or even illegal actions were capable of damaging his good name. The impugned statements could therefore be seen as attaining a sufficient level of seriousness to cause prejudice to A.T.’s reputation.

16.  Similarly to the situation in Khural and Zeynalov (cited above, § 53), the domestic courts in the present case failed to carry out a proper balancing exercise between the first applicant’s freedom of expression and A.T.’s rights and interests under Article 8 of the Convention. Since the domestic courts did not apply the criteria laid down in the Court’s case-law for balancing freedom of expression with the right to reputation, the Court finds that it must carry out the required balancing exercise itself (for a similar approach, see Perinçek v. Switzerland [GC], no. 27510/08, § 279, ECHR 2015 (extracts); Yefimov and Youth Human Rights Group v. Russia, nos. 12385/15 and 51619/15, § 42, 7 December 2021; and Khural and Zeynalov, cited above, § 54).

17.  In doing so, the Court notes that the statements in question concerned matters of public interest because, as mentioned above, they concerned such issues as the alleged breach of employee rights, the alleged abuse of power by A.T. and the allegedly poor quality of the company’s produce.

18.  As to the content and form of the impugned statements, the Court observes that the allegations set out in the articles in question (see paragraph 3 above) mentioned specific dates, persons and incidents. The Court considers them assertions of fact (statements of a factual nature), contrary to the applicant’s assertion that they were all “value judgments”.

19.  Turning to the question of the way in which the information was obtained and its veracity, the Court observes that, in the article alleging that A.T. had mistreated the company’s employees by threatening and insulting them (see paragraph 3 (ii) above), the first applicant distanced itself from the impugned statement by stating that the allegation in question had come from a “source in the company”. In the article alleging that A.T. had been dismissed from his post (see paragraph 3 (iii) above), the first applicant tried to balance the allegation in question by citing information given to the newspaper by the representatives of the company to the effect that A.T. had not been dismissed but was on vacation.

20.  The Court does not consider it necessary to pronounce on whether the steps taken by the first applicant (see paragraph 19 above) were sufficient to conclude that the newspaper had acted in line with its “duties and responsibilities” concerning the publication of the two above-mentioned allegations, because in any event no steps at all were taken to establish the veracity of the remaining allegations (namely that the company had tried to sell poor-quality beer to its Georgian counterpart, that A.T. had paid money to certain media outlets and that he had purchased cars for his family members, misusing company funds (see paragraph 3 (i), (iv) and (v) above).

21.  The Court notes in that regard that during the domestic court proceedings the first applicant was afforded a realistic chance of demonstrating the efforts it had made, if any, to check the veracity of the allegations (that is to say, assertions of fact) set out in the impugned articles. Nevertheless, the first applicant did not even attempt to present any evidence in support of the impugned statements. The first applicant only briefly alleged that it needed to protect the identities of its journalistic sources. The Court reiterates in this connection that protection of journalistic sources is one of the basic conditions for press freedom, without which sources may be deterred from assisting the press in informing the public on matters of public concern (see, among other authorities, Ruokanen and Others v. Finland, no. 45130/06, § 47, 6 April 2010, and Big Brother Watch and Others v. the United Kingdom [GC], nos. 58170/13 and 2 others, §§ 442-45, 25 May 2021). In the present case, however, the first applicant was at no stage required by the domestic courts to disclose the identities of the sources. Furthermore, in the Court’s view, a mere reference to protection of sources cannot exempt a newspaper from the obligation to prove the veracity of or demonstrate a sufficient factual basis for serious accusations of a factual nature, an obligation that can be met without necessarily having to reveal the sources in question (see Halldórsson v. Iceland, no. 44322/13, § 51, 4 July 2017). For example, the first applicant could have substantiated its allegations by collecting documentary evidence in advance – a step which it failed to take. Before the publication of the articles in question it could have also tried contacting A.T., the company and other relevant persons (such as the alleged Georgian counterpart) to verify the allegations or to obtain and convey an alternative account of the relevant factual assertions. The first applicant did not demonstrate that it had taken any of those steps (compare Europapress Holding d.o.o. v. Croatia, no. 25333/06, §§ 66-69, 22 October 2009, and Khural and Zeynalov, cited above, §§ 58-64).

22.  As to the nature and severity of the penalty imposed, the Court notes that from the case file it is clear that the first applicant never complained before the domestic courts that the amount of compensation awarded to A.T. was excessive. Nor did the first applicant submit any documents to the domestic courts or to the Court detailing its financial situation. Furthermore, from the case file it is clear that the Supreme Court, of its own motion, lowered the compensation to be paid by the first applicant, referring to the appellate court’s failure to take into consideration “the domestic courts’ [established] case-law concerning [awards of compensation in respect of non‑pecuniary damage]” and the first applicant’s “real possibilities to make the payment in respect of non‑pecuniary damage” (see paragraph 8 above).

23.  Consequently, the Court cannot conclude that the penalty imposed on the first applicant had been disproportionate.

24.  In view of its analysis in paragraphs 15 and 17-23 above, the Court concludes that the interference with the first applicant’s right to freedom of expression cannot be said to have fallen short of the requirements of “necessity in a democratic society” within the meaning of Article 10 of the Convention.

25.  There has accordingly been no violation of Article 10 of the Convention.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

Done in English, and notified in writing on 17 June 2025, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

 Olga Chernishova Oddný Mjöll Arnardóttir
 Deputy Registrar President