European Court finds harassment and surveillance of journalist violates privacy and free speech rights9 minute read.
Khadija Ismayilova v Azerbaijan, Applications Nos. 65286/13 and 57270/14
Date of judgment: 10 January 2019
Court: European Court of Human Rights (Fifth Section)
On 10 January 2019, the European Court of Human Rights (the Court) unanimously declared that the domestic authorities of Azerbaijan had failed to comply with their positive obligation to effectively investigate serious intrusions into the private life of the applicant. The applicant is an investigative journalist in Azerbaijan, who had been subjected to threats, harassment and surveillance.
Threatening letter and publication of videos depicting the applicant’s intimate life
The applicant was Ms Khadija Ismayilova, who had worked as an investigative journalist in Azerbaijan since 2005. Her broadcasts were often critical of the government, covering various topics including corruption and violations of human rights. She also worked as a regional coordinator for the Organised Crime and Corruption Reporting Project, where she trained journalists in investigation techniques and cross-border reporting.
On 7 March 2012, the applicant received a letter enclosing six still images from a video taken in her bedroom with a hidden camera. Those images showed her engaged in sexual intercourse with her then boyfriend. The accompanying message stated: “Whore, refrain from what you are doing, otherwise you will be shamed!” The letter had been sent by post from an address in Moscow. On 13 March 2012, the official newspaper of the ruling party published an article titled “Khadija Ismayilova as she seems and as she is”, in which it criticised the applicant for a lack of professionalism and anti-government bias, and insinuated that the applicant was a person of immoral behaviour.
On 14 March 2012, a video was posted online featuring scenes of a sexual nature involving the applicant and her then boyfriend, taken with the same camera hidden in her bedroom. Thereafter, in April 2013, another video purporting to show the applicant engaged in sexual activities was posted online; however, this particular video did not actually involve the applicant, but rather another woman meant to resemble her. In July 2013, another video of the applicant and her then boyfriend was posted online, which had been filmed with the same hidden camera as the first video.
On 9 March 2012, the applicant reported the threatening letter received on 7 March 2012 to the Ministry of Internal Affairs and the Prosecutor General’s Office, complaining that it was blackmail in connection with her journalistic activity, and asking the prosecution authorities to ensure her safety, to investigate the matter, and to hold those responsible for the threat and the video accountable. A week later, the Prosecutor General’s Office launched criminal proceedings and questioned the applicant.
On 17 March 2012, the applicant learnt, with the assistance of friends, that multiple other hidden cameras were installed in her flat, in addition to the one in her bedroom. They also found a newly installed second telephone line and data wires which had evidently been used for transmitting the footage shot with the hidden cameras. Following a request from the applicant, the investigators visited her flat, but refused to comment on the purpose or implications of the wires, indicating that they did not possess the technical expertise to do so. They also refused to arrange for an inspection by an expert, but agreed that the applicant could herself contact the Automatic Telephone Station (ATS), operated by the state-owned communications company, which was responsible for the telephone box outside the flat to which the wires were connected. According to the applicant, during the meeting in her flat on 19 March 2012, Mr N.J. admitted, in the presence of the investigators and others, that in July 2011 he had been instructed by his supervisor to install a second telephone line and connect the wires from the ATS to the telephone box outside the applicant’s flat.
The applicant’s complaints concerning the alleged ineffectiveness of the investigation
On 4 April 2012, the applicant published a press release in which she criticised the Baku City Prosecutor’s Office for failing to conduct an adequate investigation, and stated that her access to the investigation material was extremely limited. Thereafter, she lodged a complaint with the Prosecutor General’s Office against the officials of the Baku City Prosecutor’s Office, complaining that the latter were refusing to take obvious and simple investigative steps. The Prosecutor General’s Office did not act on the applicant’s complaint; rather, on 26 April 2012, the Prosecutor General’s Office and the Baku City Prosecutor’s Office published a joint public statement on the status of the investigation (the status report).
On 12 August 2013, the applicant lodged a complaint against the prosecuting authorities with the Sabail District Court under the judicial supervision procedure, noting that there had been no effective investigation for over a year, and that the prosecuting authorities had limited themselves to vague indications to the effect that the investigation was ongoing. She asked the court to find that the prosecuting authorities’ inactivity was unlawful. The Sabail District Court refused to examine the complaint, finding that it had no competence to examine it under the judicial supervision procedure. The applicant thereafter pursued a number of appeals and reviews, but without success.
Publication of the status report
According to the status report, referred to above, it was stated that the applicant and her lawyer had been spreading false information in the media about the alleged inadequacy of the investigation and, as such, had attempted to “create a negative opinion” among the public concerning the investigation. The status report further provided information about the period during which the applicant had rented the flat, the identities of individuals to whom she had subsequently sublet the flat, and the financial arrangements between them. The status report also disclosed the full names and occupations of the persons who had been questioned in the investigation, including the applicant’s then boyfriend, family members, colleagues and friends.
The applicant’s arrest and criminal proceedings against her
In December 2014, the applicant was arrested and detained on the charge that she had incited a former colleague to commit suicide. In February 2015, she was additionally charged with the criminal offences of large-scale misappropriation, illegal entrepreneurship, tax evasion and abuse of power. On 1 September 2015, the applicant was sentenced to seven and a half years’ imprisonment, although she was subsequently partially acquitted and given a suspended sentence.
Judgment of the Court
Threatening letter and secret filming and dissemination of intimate videos
The applicant argued that the threatening letter demanding that she cease her journalistic activities, the hidden cameras installed in her flat by unknown persons without her knowledge and consent, and the intimate videos of her taken secretly and disseminated on the internet and by the media constituted a violation of her right to privacy under article 8 of the European Convention on Human Rights (the Convention).
In the present case, the Court noted that the identity of those who committed the various acts was unknown, and it therefore remained open as to whether they were linked to state agents abusing their official power. Accordingly, the Court considered the complaint from the standpoint of the State’s positive obligations under article 8 of the Convention. The Court went on to note that:
In particular, effective deterrence against grave acts, where fundamental values and essential aspects of private life are at stake, requires the States to ensure that efficient criminal-law provisions are in place … Concerning such serious acts, the State’s positive obligation under Article 8 to safeguard the individual’s physical or moral integrity may also extend to questions relating to the effectiveness of the criminal investigation.
In its assessment, the Court considered that the acts complained of by the applicant were grave and an affront to human dignity, with an intended purpose to silence her because of her journalistic activity. The Court considered further that the practical and effective protection of the applicant required that effective steps be taken in the framework of the criminal investigation with a view to identifying and prosecuting the perpetrator or perpetrators of those acts.
As noted by the Court, for an investigation to be regarded as “effective”, it should in principle be capable of leading to the establishment of the facts of the case and to the identification and punishment of those responsible; this is not an obligation of result, but one of means. In this regard, the Court referred to the “significant flaw test”, in terms of which the Court’s task is to determine whether the alleged shortcomings in the investigation had such significant flaws as to amount to a breach of the respondent State’s positive obligations under article 8 of the Convention. As explained by the Court:
The Court is not concerned with allegations of minor errors or isolated omissions in the investigation; it cannot replace the domestic authorities in the assessment of the facts of the case; nor can it decide on possible alleged perpetrators or their criminal responsibility.
The Court noted further that, as it was difficult to discern any motive for the threats of public humiliation other than the applicant’s journalistic activity, this aspect of the case “made it of the utmost importance to investigate whether the threat was connected to the applicant’s professional activity and by whom it had been made”. The Court noted that, from the outset, the investigation authorities had several different and obvious leads, but failed to show that it had taken sufficient steps in that regard. In addition to specific aspects of the investigation highlighted in the judgment, the Court also noted that the investigation had significant delays, and that it had not been shown that any progress was made after August 2013 despite the applicant’s attempted complaints in this regard.
The Court therefore concluded that:
Having regard to the significant flaws in the manner in which the authorities investigated the case, as well as the overall length of the proceedings, the Court finds that the authorities failed to comply with their positive obligation to ensure the adequate protection of the applicant’s private life by carrying out an effective criminal investigation into the very serious interferences with her private life.
In the result, the Court held that there had been a violation of article 8 of the Convention.
Publication of the status report
The Court noted that the status report published in the press by the prosecution authorities disclosed the applicant’s home address, the fact of her relationship with her then boyfriend and his full name and occupation, the full names of her landlord and her family members, the full names and occupations of her friends and colleagues, information about individuals to whom the applicant had sublet the flat during various periods, and the details of the financial arrangements between them. The Court held that all of this information, taken as a whole, related to the applicant’s private life, and that the disclosure thereof constituted an interference with the applicant’s right to respect for her private life as contemplated in article 8 of the Convention.
In assessing whether this interference was justifiable, the Court noted that the State had not been able to demonstrate either a legitimate aim or the necessity for the interference in question. According to the Court, the protection of the applicant’s privacy was paramount in the overall context of the case, given that the criminal investigation had been launched in connection with the unjustified and flagrant invasion of her private life. As stated by the Court: “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.”
Accordingly, the Court held that there had been a violation of article 8 of the Convention.
Violation of the right to freedom of expression
The applicant argued that the State had also breached its obligations under article 10 of the Convention, which provides for the right to freedom of expression. This related to the incidents involving the threatening letter, the unauthorised installation of wires and hidden cameras in her flat, the dissemination of the covertly filmed videos and related newspaper articles in pro-government newspapers, the ineffectiveness of the investigation, the lack of remedies against the inaction of prosecuting authorities, and the publication of the status report by the investigating authorities.
As explained by the Court, the positive obligations under article 10 of the Convention require states “to create, while establishing an effective system of protection of journalists, a favourable environment for participation in public debate by all the persons concerned, enabling them to express their opinions and ideas without fear, even if they run counter to those defended by the official authorities or by a significant part of public opinion, or even irritating or shocking to the latter”. The Court stated further that:
[T]he Court has repeatedly stressed that interference with freedom of expression may have a “chilling effect” on the exercise of that freedom … and this is more so in cases of serious crimes committed against journalists, making it of utmost importance for the authorities to check a possible connection between the crime and the journalist’s professional activity.
The Court noted that there was no other plausible motive for the harassment of the applicant other than because of her journalistic activity. In such circumstances, the Court noted further 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. In the situation, the Court stated that the Convention required the respondent State to take positive measures to protect the applicant’s journalistic freedom of expression, in addition to its positive obligation under article 8 of the Convention to protect her from intrusion into her private life. The Court concluded that the State had therefore failed to comply with its positive obligation to protect the applicant in the exercise of her freedom of expression.
In the result, the Court made the following order:
“For these reasons, the Court, unanimously,
1. Decides to join the applications;
2. Declares the applications admissible;
3. Holds that there has been a violation of Article 8 of the Convention in connection with the domestic authorities’ failure to comply with their positive obligation to investigate effectively very serious intrusions into the applicant’s private life;
4. Holds that there has been a violation of Article 8 of the Convention in connection with the disclosure of the private information published in the authorities’ report on the status of the investigation;
5. Holds that there has been a violation of Article 10 of the Convention;
6. Holds that there is no need to examine the complaint under Article 6 of the Convention;
(a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts, to be converted into Azerbaijani manats at the rate applicable at the date of settlement:
(i) EUR 15,000 (fifteen thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;
(ii) EUR 1,750 (one thousand seven hundred and fifty euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses;
(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;
8. Dismisses the remainder of the applicant’s claim for just satisfaction.”
The full judgment is accessible here.
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