Published on 27 March 2023
FIRST SECTION
Application nos. 71556/16 and 74112/17
Khadija Rovshan gizi ISMAYILOVA
against Azerbaijan
lodged on 23 November 2016 and 11 October 2017 respectively
SUBJECT MATTER OF THE CASE
The applications concern criminal proceedings against an investigative journalist.
APPLICATION No. 71556/16In October 2014, in connection with an episode of attempted suicide by a former colleague of hers, the applicant was charged with the criminal offence of incitement to suicide and remanded in custody. In February 2015 the applicant was additionally charged with criminal offences of high-level embezzlement, illegal entrepreneurship attended by profit-making at large scale (under Article 192.2.2 of the Criminal Code), large-scale tax evasion and aggravated abuse of power. Those charges concerned her activity as head of the Baku “bureau” of the Azerbaijani service of Radio Free Europe/Radio Liberty (“Azadliq Radio”) in the period between July 2008 and October 2010, as well as subsequent periods of her work in affiliation with Azadliq Radio in other capacities.
On 1 September 2015 the Baku Court for Serious Crimes acquitted the applicant of the offence of incitement to suicide for lack of evidence, but convicted her under the remaining charges, sentencing her to seven and a half years’ imprisonment and a temporary ban on holding managerial and financial posts in public and local self-government bodies. Following a series of appeals, by a final decision 25 May 2016 the Supreme Court upheld her conviction of illegal entrepreneurship and large-scale tax evasion, but quashed the lower court’s judgment in the part related to the other charges for lack of the constituent elements of those criminal offences in her actions. It also reduced her sentence to three and a half years’ imprisonment suspended on probation, following which she was released from detention.
The applicant complains under Article 6 §§ 1 and 3 (b), (c) and (d) of the Convention that the criminal proceedings as a whole were unfair, politically motivated and in breach of a number of guarantees of fair trial. She also complains under Article 7 of the Convention that the conduct for which she was convicted of the offence of illegal entrepreneurship did not contain elements of that criminal offence. Lasty, she complains that her conviction and imprisonment also breached her rights under Articles 10 and 18 of the Convention.
APPLICATION no. 74112/17In May 2016 the definition of “illegal entrepreneurship” in Article 192.1 was amended. Following this, the applicant lodged an application with the Baku Court of Serious Crimes, asking for quashing of her criminal conviction under Article 192.2.2 of the Criminal Code, arguing that the acts of which she had been convicted did not constitute a criminal offence under that provision following the above-mentioned amendment. The court partly granted the applicant’s request, by re-classifying the offence under Article 192.1 and reducing the sentence imposed under that charge to four months’ imprisonment, as well as further reducing her total merged sentence from three and a half years’ imprisonment suspended on probation to two years and three months’ imprisonment suspended on probation. Following a series of appeals, by a final decision of 16 February 2017 (notified to the applicant on 11 April 2017) the Supreme Court upheld this decision.
The applicant complains under Article 7 of the Convention that the conduct on which her conviction of illegal entrepreneurship was based did not contain elements of that criminal offence, in particular following the above-mentioned amendment to the Criminal Code.
QUESTIONS TO THE PARTIES
In respect of application no. 71556/16
1. Did the applicant have a fair hearing in the determination of the criminal charges against her, in accordance with Article 6 § 1 of the Convention? In particular, were the applicant’s right to a reasoned decision and the principle of adversarial proceedings and equality of arms respected? Was the applicant afforded adequate time and facilities to prepare her defence, as required by Article 6 § 3 (b) of the Convention? Was the applicant able to defend herself effectively through legal assistance of her own choosing, as required by Article 6 § 3 (c) of the Convention? Was the applicant able to examine witnesses against her and to obtain the attendance of witnesses on her behalf, as required by Article 6 § 3 (d) of the Convention?
2. Did the applicant’s criminal conviction and imprisonment also amount to violations of her rights under Article 10 of the Convention and under Article 18 of the Convention taken in conjunction with Article 10 of the Convention?
In respect of both applications nos. 71556/16 and 74112/17
3. Did the acts or omissions of which the applicant was convicted constitute a criminal offence of illegal entrepreneurship (as defined in Articles 192.1 and 192.2.2 of the Criminal Code) under national or international law at the time when it was committed, as envisaged by Article 7 of the Convention? Did the interpretation by the domestic courts of the criminal offence of which she was convicted satisfy the requirements of foreseeability under this Convention provision?