Fatullayev v. Azerbaijan

Information Note on the Court’s case-law No. 129

April 2010

Fatullayev v. Azerbaijan - 40984/07

Judgment 22.4.2010 [Section I]

Article 10

Article 10-1

Freedom of expression

Criminal convictions of newspaper editor for articles calling into question official version of events and government policy: violations

Article 6

Criminal proceedings

Article 6-1

Impartial tribunal

Independent tribunal

Criminal trial in defamation case presided over by same judge as had sat in prior civil proceedings: violation

Article 6-2

Presumption of innocence

Statement by Prosecutor General prior to formal charges being brought indicating that a material element of suspected offence had been made out: violation

Article 46

Article 46-2

Execution of judgment

Individual measures

Respondent State required to secure immediate release of newspaper editor whose conviction and prison sentences had violated his right to freedom of expression

Facts – The applicant, a newspaper editor, was prosecuted in connection with two articles he had published.

In the first (and in separate postings that subsequently appeared on the Internet), he discussed a massacre that had taken place at the town of Khojaly in 1992 during the war in Nagorno-Karabakh. He made statements that could be construed as differing from the commonly accepted version according to which hundreds of Azerbaijani civilians had been killed by Armenian armed forces with the reported assistance of the Russian army. A civil action was then brought against him, which culminated in his being ordered to publish a retraction and an apology and to pay compensation in respect of non-pecuniary damage. In separate, criminal, proceedings four Khojaly survivors and two former soldiers involved in the battle also brought a private prosecution against the applicant accusing him of defamation and of falsely accusing Azerbaijani soldiers of an especially grave crime. The trial was presided over by the same judge who had sat in the civil action. The applicant was convicted of two counts of defamation and sentenced to two and a half years’ imprisonment.

The second article was entitled “The Aliyevs Go to War”. In it, the applicant expressed the view that, in order for President Ilham Aliyev to remain in power in Azerbaijan, the Azerbaijani Government had sought the support of the United States in exchange for Azerbaijan’s support for the US “aggression” against Iran. He speculated about a possible US-Iranian war in which Azerbaijan could also become involved, and provided a long and detailed list of strategic facilities in Azerbaijan that would be attacked by Iran if such a scenario developed. He concluded that the Azerbaijani Government should have maintained neutrality in its relations with both the US and Iran, and had not realised all the grave consequences its support of the US position entailed. The article also discussed the issue of possible unrest, in the event of a conflict with Iran, in the southern regions of Azerbaijan populated by the Talysh ethnic minority. As a result of the publication of this article, the applicant was prosecuted for the offences of threat of terrorism and inciting ethnic hostility. Before he had been formally charged, however, the Prosecutor General made a statement to the press in which he stated that the article constituted a threat of terrorism. The applicant was found guilty as charged and sentenced to a total of eight and a half years’ imprisonment.

Law – Article 10: (a) First conviction – The Court began by explaining that its judgment was not to be understood as containing any factual or legal assessment of the Khojaly events or any arbitration of historical claims relating thereto. It acknowledged the very sensitive nature of the issues that had been raised and that the loss of hundreds of innocent civilian lives had been a source of deep national grief; it also found it understandable that the statements made by the applicant might have been considered shocking or disturbing by the public. However, it reiterated that freedom of information applied not only to information or ideas that were favourably received, but also to those that offended, shocked or disturbed. Likewise, it was an integral part of freedom of expression to seek historical truth. Various matters related to the Khojaly events still appeared to be open to ongoing debate among historians, and as such should have been a matter of general interest in modern Azerbaijani society. It was essential in a democratic society that a debate on the causes of acts of particular gravity possibly amounting to war crimes or crimes against humanity should be able to take place freely, while the press also had a vital role of “public watchdog” with a duty to impart information and ideas on political issues and on other matters of general interest.

The first article had been written in a generally descriptive style with the aim of informing Azerbaijani readers of the realities of day-to-day life in the area in question. The public had been entitled to receive information about what was happening in the territories over which their country had lost control in the aftermath of the war. The applicant had attempted to convey, in a seemingly unbiased manner, various ideas and views of both sides of the conflict. Although the article contained remarks that some of the Azerbaijani military units had shared a degree of responsibility with the perpetrators of the mass killings, it did not contain any statements directly accusing the Azerbaijani military or specific individuals of committing the massacre and deliberately killing their own civilians. Further, as the role and responsibility of the Azerbaijani authorities in either failing to prevent or contributing to the Khojaly events was the subject of ongoing debate, the applicant as a journalist had had a right under Article 10 to impart ideas concerning that matter.

In contrast, the Internet postings had contained very specific allegations that Azerbaijani fighters had killed some of the victims (though perhaps not intentionally) and mutilated the bodies. By making those statements without relying on any relevant factual basis, the applicant may have failed to comply with the journalistic duty to provide accurate and reliable information. Be that as it may, the Court did not need to reach any definitive conclusions on that issue as it found that, in any event, the domestic courts had failed to provide sufficient and relevant reasons for finding that the persons allegedly defamed (four Khojaly refugees and two former soldiers) had in fact suffered damage to their reputation. The dignity of the Khojaly victims and survivors in general and of the four refugees in particular had not been undermined as there was nothing to suggest that the applicant had sought to deny the fact of the mass killing, to exculpate the perpetrators, or to humiliate or debase the victims. On the contrary, he had expressed sympathy with their plight. As regards the two former soldiers, it had not been convincingly established that the applicant had directly accused them of having personally committed grave crimes as the statements had related to unidentified “provocateurs”.

Lastly, the imposition of a prison sentence for a press offence was compatible with journalists’ freedom of expression only in exceptional circumstances, notably where other fundamental rights had been seriously impaired as, for example, in cases of hate speech or incitement to violence. There had been no justification for the imposition of a prison sentence in the applicant’s case.

Conclusion: violation (unanimously).

(b)  Second conviction – The article “The Aliyevs Go to War” had focused on Azerbaijan’s specific role in the dynamics of international politics relating to US-Iranian relations and so had been part of a political debate on a matter of general and public concern. The applicant had criticised the Azerbaijani Government’s foreign and domestic political moves and, in common with a number of other media sources at the time, had suggested that, in the event of a war, Azerbaijan was likely to be involved; he had also speculated about possible targets for Iranian attacks. He had not, however, revealed any State secrets or increased or decreased the chances of an attack, but had sought to convey a dramatic picture of the specific consequences of Azerbaijan’s involvement in a possible future war. The opinions he had expressed were about hypothetical scenarios and, as such, were not susceptible of proof.

As regards the conviction for threat of terrorism, the applicant, as a journalist and private individual, had clearly not been in a position to influence or exercise any degree of control over any of the hypothetical events discussed in the article. Nor had he voiced any approval or argued in favour of any such attack. It had been his task, as a journalist, to impart information and ideas on the relevant political issues and to express opinions about the possible future consequences of specific decisions taken by the Government. The domestic courts’ finding that the applicant had threatened the State with terrorist acts had thus been arbitrary. As to his conviction for inciting ethnic hostility, the issues raised in the applicant’s article could be considered a matter of legitimate public concern which he had been entitled to bring to the public’s attention. The mere fact that he had discussed the social and economic situation in regions populated by an ethnic minority and voiced an opinion about possible political tension in those regions could not be regarded as incitement to ethnic hostility. Although the relevant passages may have contained certain categorical and acerbic opinions and a certain degree of exaggeration in criticising the central authorities’ alleged treatment of the minority group concerned, they contained no hate speech and could not be said to encourage inter-ethnic violence or to disparage any ethnic group in any way.

The domestic courts had thus failed to provide any relevant reasons for the applicant’s conviction on charges of threat of terrorism and incitement to ethnic hostility. The gravity of the interference had, furthermore, been exacerbated by the particularly severe penalty that had been imposed: a heavy prison sentence when none had been justified. There had thus been a grossly disproportionate restriction on the applicant’s freedom of expression.

Conclusion: violation (unanimously).

Article 6 § 1: The applicant had complained that the judge who had sat in the first set of criminal proceedings had previously sat in the civil action. The Court noted that both sets of proceedings had concerned exactly the same allegedly defamatory statements and the judge had been called upon to assess essentially the same or similar evidence. Having decided the civil case, the judge had already reached the conclusion that the applicant’s statements constituted false information tarnishing the dignity of the Khojaly survivors. Accordingly, doubts could have been raised as to the appearance of impartiality of the judge at the subsequent criminal trial. In the light of the special features of the case, the applicant’s fear of the judge’s lack of impartiality could therefore be considered as objectively justified.

Conclusion: violation (unanimously).

Article 6 § 2: The presumption of innocence was violated if a statement by a public official concerning a person charged with a criminal offence reflected an opinion that he was guilty before he had been proved guilty according to law. While the applicant’s position as a well-known journalist meant that it had been necessary to keep the public informed of the alleged offence and ensuing proceedings, the Prosecutor General should have exercised particular caution in his choice of words. However, he had unequivocally declared at the start of the investigation that the applicant’s article contained a threat of terrorism. Those specific remarks, made without any qualification or reservation, had amounted to a declaration that the applicant had committed the criminal offence of threat of terrorism and had thus prejudged the assessment of the facts by the courts.

Conclusion: violation (unanimously).

Article 46: There had been no justification for imposing a prison sentence on the applicant and it was unacceptable that he should remain in prison.

Conclusion: applicant to be released immediately (six votes to one).

Article 41: EUR 25,000 in respect of non-pecuniary damage.

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This summary by the Registry does not bind the Court.

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