Published: 10 Jan 2019 | By Roman Kiselyov
Khadija Ismayilova v Azerbaijan
Case Nos. 65286/13 and 57270/14
Judgment Date: 10 January 2019
The applicant, Khadija Ismayilova, is an award-winning and renowned Azerbaijani journalist, whose investigations have exposed corruption and bias within the government and presidential administrations. In August 2010 and June 2011 she published and contributed to articles concerning the alleged involvement of the President’s daughters in various commercial ventures, and in 2012 claimed the government had awarded a lucrative extraction license to a mining consortium controlled by the president’s family. In March 2012 she received a threatening letter from an address in Moscow, demanding that she cease her activities, enclosed with stills from a video taken in her bedroom with a hidden camera, showing her engaged in sexual intercourse with her then boyfriend. These images were also sent to two opposition newspapers, which did not publish them. Two further videos of a sexual nature were published in online newspapers, as well as a video featuring someone resembling the applicant, and several articles attacking her. After investigating with her friends, she discovered hidden cameras had been installed in her flat by unknown persons without her knowledge and consent, from which the intimate videos were filmed and disseminated. They also found a second telephone wire leading out of the flat, and connecting to a telephone box outside her building.
A criminal investigation was initiated; however, the applicant claimed that prosecuting authorities refused to conduct even the most simple and obvious measures to identify and bring to justice the perpetrators. After the applicant published a press release outlining her complaints regarding the investigation, the Prosecutor’s office issued a report on the status of investigation, disclosing to the public additional personal private information concerning the applicant.
Firstly, the Court unanimously held that the threatening letter, secret filming and dissemination of intimate videos concerned an intimate aspect of the applicant’s private life, which required the state, under its positive obligation, to ensure that an efficient criminal law was in place and an effective criminal investigation conducted. It held that the authorities had failed to conduct an effective investigation in breach of Art. 8 ECHR: the criminal investigation was handled with significant flaws and delays; obvious leads were not followed; key witnesses were not properly questioned; the authorities failed to rule out whether the acts were motivated by the applicant’s professional activities; the person who sent the threat letter was not identified and the source of the videos and identities of the uploaders was not determined. The Court concluded therefore, that the authorities failed to comply with their positive obligation to ensure adequate protection of the applicant’s private life by carrying out an effective criminal investigation.
Secondly, with regard to the Prosecutor’s publication of the investigation status report, the Court found another violation of Art. 8, noting that disclosure of sensitive personal information and “excessive and superfluous disclosure of sensitive private details” in the status report constituted an interference with the applicant’s privacy, which was not justified and did not serve a legitimate aim, specifically when the question of the applicant’s privacy was paramount in the overall context of the case. As the Court stated “The situation itself called for the authorities to exercise care in order not to compound further the already existing breach of the applicant’s privacy”, which it failed to do.
Thirdly, given the professional background of the applicant and her journalist activities, the Court held that there was a violation of the state’s positive obligation under Art. 10 to protect her freedom of expression. The Court drew attention to the flaws and delays in the criminal investigation, the newspaper articles published, the public disclosure of additional sensitive information by the authorities, which compounded the situation and was “contrary to the spirit of an environment protective of journalism” (para. 165).
The Court awarded €15,000 in respect of non-pecuniary damages.
The significance of the case is reflected in the large number of organisations permitted to intervene as third parties in the case (for a summary of their comments, see paras 74-78 of the judgment):
- PEN International
- Privacy International
- Article 19
- Committee to Protect Journalists
- Index on Censorship
- International Media Support
- the Institute for Reporters’ Freedom and Safety
- International Partnership for Human Rights
- PEN American Center
- Front Line Defenders
- Canadian Journalists for Free Expression
- International Federation for Human Rights
- World Organisation Against Torture
- Norwegian Helsinki Committee
- Human Rights House Foundation
This judgment underlines the outstanding importance of independent journalism in a democratic society, reaffirming the positive obligations of States to protect journalists from pressure and harassment, including by ensuring effective investigation of crimes committed against them. The applicant has since continued to face restrictions to her professional activities. In December 2014, she was arrested and detained on the charge of inciting a former colleague to commit suicide, and was additionally charged in February 2015 with large-scale misappropriation, illegal entrepreneurship, large-scale tax evasion and abuse of power. All of these charges are widely believed to be trumped-up, and her arrest and detention are the subject of a separate case currently pending judgment from the ECtHR. She was released in May 2016. She is currently subject to a travel ban, seemingly intended to hinder and punish her for her high-profile journalism. This case is currently pending judgment before the ECtHR.