Azerbaijan failed to protect journalist’s privacy and the right to freedom of expression

by Emil Weber

The European Court of Human Rights (ECtHR) ruled on 10. January 2019 that Azerbaijan’s failure to protect journalist Khadija Ismayilova from public humiliation and unjustified invasion of her privacy amounted to a violation of her privacy and of the right to freedom of expression granted by the European Convention.

Ismayilova, who worked as an investigative reporter and director at Azadliq Radio - the Azerbaijani service of Radio Free Europe - had published several stories between 2010 and 2013 indicating dubious business involvements and investments by the President of Azerbaijan and his family members.

The journalist claimed that due to her critical reporting towards the government, she had been threatened and intimidated in various forms.

In March 2012, she received a letter containing six images of her sexual intercourse with her boyfriend taken in her bedroom through a hidden camera. “Whore, refrain from what you are doing, otherwise you will be shamed!”, read the letter, which was sent also to two newspapers.

Videos of the same nature, recorded from a hidden camera installed by a state owned communications company, were later published on the musavat.tv and ictimaipalatka.com websites, and local newspaper articles criticised Ismayilova for “immoral behaviour”.

The journalist reported the letter, which she considered blackmail to her journalistic work, to the Ministry of Internal Affairs and the Prosecutor General’s Office. The Prosecution launched an investigation and she was also interviewed.

Later in 2012, the journalist criticized the Baku City Prosecutor’s Office for failing to conduct an adequate investigation. During the same year, the Prosecutor General’s Office and Baku City Prosecutor’s Office issued a “status report” on the case, in which they provided information concerning the home address of the journalist, the names of landlords, names and occupations of her boyfriend, brother and friends, as well as financial arrangements with persons to whom she had sublet the apartment. 

Said the ECtHR:

“The spokesman of the Baku City Prosecutor’s Office indicated in an interview that the status report had been released in response to the applicant’s public complaints about the lack of an effective investigation. He also stated that there was nothing unlawful in the contents of the status report.”

The Sabail District Court and other relevant national courts dismissed Ismayilova’s continuous complaints against ineffective prosecutorial investigation on her blackmailing, as well as her application against the details published in the prosecution’s “status report”.

The top European human rights court, however, has now ruled that the information provided in the prosecution’s “status-report” amounted to a violation of Art. 8 of the European Convention on the right to private life.

The ECtHR said that Aerbaijan was not able to demonstrate “either a legitimate aim or the necessity for the interference” in Ismayilova’s private life through this report.

“The Court considers that it would have been possible to inform the public about the nature of the investigative steps taken by the authorities (questioning of witnesses, examination of material evidence, and so on), while also at the same time respecting the applicant’s privacy”, the top court said. “The protection of [Ismayilova’s] privacy was paramount in the overall context of the case”.

At the same time, the ECtHR said that the state had positive obligations towards Ismayilova from the perspective of Art. 10 of the European Convention on the right to freedom of expression.

“Having regard to the reports on the general situation concerning freedom of expression in the country and the particular circumstances of the present case, the Court considers that the threat of public humiliation and the acts resulting in the flagrant and unjustified invasion of the applicant’s privacy were either linked to her journalistic activity or should have been treated by the authorities when investigating as if they might have been so linked”, the court said.

The ECtHR said that “there were significant flaws and delays” in national authorities’ investigation of the blackmailing.

“Moreover, the articles published in the newspapers, which the applicant claimed were pro-government, as well as the unjustified public disclosure by the authorities during the investigation of the additional information relating to the applicant’s private life, further compounded the situation, contrary to the spirit of an environment protective of journalism”, the ruling read.

It ordered Azerjbaijan to pay Ismayilova 16,750 euros in non-pecuniary damages and costs.

Ismayilova currently has another application at ECtHR in regard to her arrest in 2014 and subsequent detention for inciting a colleague’s suicide as well as “illegal entrepreneurship, large-scale tax evasion and abuse of power in connection with her activity as the director of Azadliq Radio [Radio Free Europe’s country service]”, for ­which she was sentenced to 7.5 years in prison in 2015, later reduced to 3.5 years.

Read more

Ismayilova v. Azerbaijan, application nos. 65286/13 and 57270/14. 10 January 2019