CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 10 janvier 2019

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AZERBAIJAN   (Applications nos. 65286/13 and 57270/14)               JUDGMENT     STRASBOURG   10 January 2019     FINAL   10/04/2019   This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision.   In the case of Khadija Ismayilova v. Azerbaijan, The European Court of Human Rights (Fifth Section), sitting as a Chamber composed of:   Angelika Nußberger, President,   André Potocki,   Síofra O’Leary,   Mārtiņš Mits,   Gabriele Kucsko-Stadlmayer,   Lәtif Hüseynov,   Lado Chanturia, judges, and Claudia Westerdiek, Section Registrar, Having deliberated in private on 27 November 2018, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.     The case originated in two applications (nos.   65286/13 and 57270/14) against the Republic of Azerbaijan lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by an Azerbaijani national, Ms Khadija Rovshan qizi Ismayilova ( Xədicə Rövşən qızı İsmayılova – “the applicant”), on 26 September 2013 and 31 July 2014 respectively. 2.     The applicant was represented by Ms A. Vermeer, Ms Y.-O. Jansen and Ms L. Talsma of the Media Legal Defence Initiative, lawyers based in London, Mr L.   Crain of De Brauw Blackstone Westbroek, a lawyer practising in the Netherlands, Mr   Y.   Imanov, a lawyer practising in Azerbaijan, and Mr S.   Finizio, a lawyer practising in London. The Azerbaijani Government (“the Government”) were represented by their Agent, Mr Ç.   Asgarov. 3.     The applicant alleged, in particular, that her rights under Articles 6, 8, 10 and 13 of the Convention had been breached, owing to the authorities’ failure to protect her from unjustified intrusions into her private life linked to her work as a journalist. 4.     On 17 December 2015 the applications were communicated to the Government. The applicant and the Government each submitted written observations on the admissibility and merits of the applications. Observations were also received from 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, and Human Rights House Foundation, to whom the President had given leave to intervene as third parties in the written procedure (Article 36 § 2 of the Convention and Rule   44 § 3 of the Rules of Court). THE FACTS I.     THE CIRCUMSTANCES OF THE CASE 5.     The applicant was born in 1976 and lives in Baku. A.     Background 6.     The applicant worked as an investigative journalist since 2005. She worked as a staff reporter and director at the Azerbaijani service of Radio Free Europe/Radio Liberty (“Azadliq Radio”), whose broadcasts were often critical of the government, covering various topics, including corruption and violations of human rights. In addition, she worked as a regional coordinator for the Organised Crime and Corruption Reporting Project, where she trained journalists in investigation techniques and cross-border reporting. She has received a number of international awards for her journalistic activity. 7.     In August 2010 and June 2011, before the events giving rise to the present case, the applicant had published and contributed to articles concerning the alleged involvement of the President’s daughters in various commercial ventures. In early 2012 the applicant claimed that her research had uncovered that the presidential family controlled a mining consortium which had just been awarded a lucrative extraction licence by the Azerbaijani government. 8.     During the events giving rise to the present case, the applicant continued to report on the above matters. In particular, on 3 May 2012 she published an article on the above-mentioned mining consortium. On 7 May 2012 she published an article entitled “President’s family benefits from Eurovision Hall”. On 11 October 2012 she wrote about the alleged investments of the presidential family in an article entitled “Azerbaijani enclave in the Czech Republic”. On 3 April 2013 she published an investigative report entitled “Offshore companies provide link between corporate mogul and Azerbaijan’s president”. 9.     According to the applicant, since she began reporting critically on the government she has been threatened and intimidated in various ways. B.     Threatening letter and publication of videos depicting the applicant’s intimate life 10.     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 a man who, according to the applicant, was her then boyfriend. The message accompanying the images stated: “Whore, refrain from what you are doing, otherwise you will be shamed! ” ( “Qəhbə, özüvü yığışdır. Əks halda rüsvay olacaqsan! ” ). The letter had been sent by post from an address in Moscow. The sender’s name as noted on the envelope was “Valeriy Mardanov”. 11.     The same images were also sent to two opposition newspapers, Yeni Müsavat and Azadliq , which did not publish them. 12.     On the same day the applicant made a statement, distributed through social media, that she would not cease her journalistic activity and would not be silenced. 13.     On 9 March 2012 the applicant reported the above-mentioned letter to the prosecution authorities and lodged a formal request for an investigation, arguing that the letter amounted to blackmail related to her recent journalistic activities. She also requested measures to protect her safety. The investigation was formally launched on 15 March 2012 (see section C below). 14.     In the meantime, on 13 March 2012 the newspaper Yeni Azərbaycan (the official newspaper of the ruling New Azerbaijan Party) published an article titled “Khadija Ismayilova as she seems and as she is”. The article began with a reference to the applicant’s statement about receiving the threatening letter. It further criticised the applicant and those who had spoken in her support. In particular, it criticised both her and a colleague at Azadliq Radio for lack of professionalism and anti-government bias. Moreover, citing another former employee of Azadliq Radio, it also insinuated that the applicant was a person of immoral behaviour who spent a great deal of her time in bars and clubs and regularly held all-night parties and “orgies” with her friends in her office. The same article was published in the newspaper İki Sahil on 15 March 2012. 15.     On 14 March 2012 a video was posted online on a website named “musavat.tv”, featuring scenes of a sexual nature involving the applicant and her then boyfriend, taken with the same camera hidden in her bedroom. Müsavat is a political opposition party, which indicated that it had nothing to do with the website and condemned the posting of the video. According to the applicant, the domain name “musavat.tv” was apparently chosen solely for the posting of the video, to create the suggestion of a link with the Müsavat party or its newspaper, Yeni Müsavat . 16.     On 16 March 2012 the newspaper Səs published an article titled “Not surprising”. The article spoke about a number of scandals in which various opposition politicians had been involved. At the end, the article briefly alluded to the incident involving the applicant, without going into much detail about it, but stating that it was not surprising that many opposition-oriented individuals were involved in “sex scandals”. 17.     On 5 April 2012 Səs published another article titled “Who should Khadija sue?” attacking the applicant for “immoral behaviour” and suggesting that the video scandal had been created by herself and her friends at “musavat.tv”. 18.     Several more articles attacking the applicant were published later in Səs . 19.     In April 2013 another video purporting to show the applicant engaged in sexual activities was posted on a website named “ictimaipalatka.com” where, according to the applicant, similar videos of other activists and anti-government figures had been posted previously. This particular video did not in fact involve the applicant, but rather a woman meant to resemble her. 20.     While the investigation in connection with the threatening letter and the posting of the first video was under way (see below), in July 2013 another video of the applicant and her then boyfriend filmed in the applicant’s bedroom was posted on “ictimaipalatka.com”. This video actually featured the applicant, and had been taken with the same hidden camera used for the first video. According to the applicant, the webpage of the video was contained in a frame marked “SesTV Player”. C.     Criminal investigation 1.     Opening of the criminal investigation and steps taken 21.     As noted above, 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. 22.     On 15 March 2012, one week after the applicant’s formal complaint and a day after the video was posted, the Prosecutor General’s Office launched criminal proceedings under Article 156 (breach of inviolability of private life) of the Criminal Code on the basis of the applicant’s request, and assigned the case to the Baku City Prosecutor’s Office. 23.     On 17 March 2012 the applicant was questioned by Mr N.A., an investigator of the Baku City Prosecutor’s Office. 24.     On 17 March 2012 the applicant found out, with the help of friends, that as well as the camera in the bedroom there were multiple other hidden cameras installed in her flat. Moreover, they found a newly installed second telephone line and data wires which had evidently been used for transmitting the footage shot with the hidden cameras. 25.     According to the applicant, she and her friends returned to the flat the next day and discovered several signs indicating that someone had been in it overnight. 26.     On 19 March 2012 the applicant went to the Baku City Prosecutor’s Office to request an inspection of her flat. According to 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 would herself contact the Automatic Telephone Station No. 538 (ATS), operated by Baktelekom, a State-owned communications company, which was responsible for the telephone box outside the flat to which the wires were connected. 27.     The applicant was told at the ATS that the designated service engineer for the applicant’s building was Mr N.J., an employee of the ATS. The applicant managed to track down Mr N.J. and arranged to meet him in her flat the same day. She also arranged for two investigators from the Baku City Prosecutor’s Office, Mr N.A. and his assistant, to be present during the meeting. 28.     According to the applicant, during the meeting in her flat on 19   March 2012, Mr N.J. admitted, in the presence of the investigators, the applicant, her lawyer and three of her friends, that in July 2011, on a day off work, Saturday (either 2 or 9 July 2011), on the instructions of his supervisor, he had installed a second telephone line and connected the wires from the ATS to the telephone box outside the applicant’s flat. He had been asked by an unknown man he had met outside the flat to leave an extra fifteen metres of wire so that they could be connected inside the flat. He had also heard other people at work with the wires inside the flat. According to the applicant, during the conversation the investigator Mr N.A. appeared to be recording the engineer’s statements. However, he later tore up his handwritten investigation record and made a new document that did not contain the engineer’s account. He also asked the engineer to remove the second phone line, without documenting its removal. According to the applicant, despite her objections, he did not include Mr N.J.’s statements in the investigation case file and did not mention in the investigation record that there had been a meeting with Mr N.J. at the applicant’s flat. 29.     On 21 March 2012 the applicant asked the Chief Prosecutor’s Office and the Baku City Prosecutor’s Office to question Mr N.J. Then, according to her, on 3 April and 12 April 2012 she visited the Baku City Prosecutor’s Office to get an update on the status of the investigation, but to no avail. 30.     According to the documents submitted by the Government, on 30   March 2012 Mr N.A., the investigator of the Baku City Prosecutor’s Office, took a formal decision granting the applicant’s request to have Mr   N.J. questioned and to take investigative steps to determine who had instructed him to install wires leading to the applicant’s flat. The Government did not submit any records of Mr N.J.’s questioning or any further decisions by the prosecuting authorities taken in this regard. 31.     In the meantime, on 19 March 2012 the investigator ordered an expert examination of gloves, pieces of newspaper and a lock found in the applicant’s flat. 32.     Between April 2012 and August 2013, the investigator issued a series of decisions ordering expert examinations of the following items: the still images sent to the applicant and the Yeni Müsavat newspaper; wires found in the applicant’s flat; a disc containing the video recording published on “mustavat.tv”; the postal packaging in which the threatening letter and the still images had been sent to the applicant and the Yeni Müsavat newspaper; and a disc containing the video recording published on “ictimaipalatka.com”. 33.     The Government did not submit any expert reports or other documents relating to the above-mentioned decisions. No further documents concerning the investigative steps taken have been made available to the Court by the parties. 2.     The applicant’s complaints concerning the alleged ineffectiveness of the investigation 34.     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”. 35.     On 13 April 2012 the applicant 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. 36.     The Prosecutor General’s Office did not act on the applicant’s complaint. Instead, 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”). The content of the status report and the proceedings relating to it are described in section D below. 37.     On 12 November 2012 the applicant requested from the Prosecutor General’s Office and the Baku City Prosecutor’s Office information on the status of the investigation, and copies of any decisions taken. According to the applicant, by letters of 14 and 21 November 2012 the Baku City Prosecutor’s Office replied that the investigation was being conducted and that decisions on the applicant’s various requests had been taken on 31   March and 3 April 2012 (no copies of those letters or decisions are available in the case file). According to the applicant, she wrote a letter dated 28   November 2012 asking for copies of those decisions, since she had not received them. 38.     Having received no further replies, on 2 April 2013 the applicant again requested information from the prosecuting authorities on the status of the investigation. On 4 April 2013 the Baku City Prosecutor’s Office replied that decisions taken in respect of her requests had been sent to her on 30   March 2012 and 3 December 2012 (no copy of a decision taken on the latter date is available in the case file). The letter further stated that a number of investigative steps, including various expert examinations, had been taken, and that the investigation was under way. By a letter of 30 April 2013 the Prosecutor General’s Office gave the applicant a similar reply. 39.     On 12 August 2013, after the publication of the second hidden video recording in July 2013 (see paragraph 20 above), 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 the prosecuting authorities’ inactivity unlawful, and sought monetary compensation. 40.     By a decision of 13 August 2013 the Sabail District Court refused to examine the complaint, finding that it had no competence to examine it under the judicial supervision procedure, because the matter complained of was not among the exclusive list of types of decisions and steps by the prosecuting authorities, established by Articles 449.3.1 to 449.3.7 of the Code of Criminal Procedure (“the CCrP”), that could be challenged under the judicial supervision procedure. The court noted that a complaint concerning the alleged inactivity of the prosecuting authorities should be made under the rules of administrative procedure. 41.     On 16 August 2013 the Baku City Prosecutor’s Office, ruling on a request by the applicant, refused to allow her access to the investigation case file until the investigation was complete, relying on Articles 87, 281.3 and 284-286 of the CCrP. On the same day, it refused her request for the criminal offence to be reclassified as falling under Article 163.1 (hindrance of a journalist’s lawful professional activity) of the Criminal Code. 42.     On 28 August 2013 the applicant lodged another complaint with the Sabail District Court under the judicial supervision procedure, with content similar to that of the previous complaint of 12 August 2013. On 30 August 2013 the Sabail District Court rejected the complaint, for the same reasons as in the decision of 13 August 2013. On 9 September 2013 the applicant appealed. On 18 September 2013 the Baku Court of Appeal upheld the Sabail District Court’s inadmissibility decision. 43.     On 18 September 2013 the applicant lodged a third complaint with the Sabail District Court under the judicial supervision procedure, which was again rejected by that court on 30 September 2013, and by the Baku Court of Appeal on 17 October 2013. 44.     In the meantime, as recommended by the Sabail District Court, on 28 August 2013 the applicant lodged a complaint against the prosecuting authorities with the Baku Economic Administrative Court no. 1 under the rules of administrative procedure. 45.     On 19 September 2013 the Baku Economic Administrative Court no.   1 refused to hear the complaint, finding that under the Code of Administrative Procedure and the Law on Administrative Proceedings it had no competence to examine complaints concerning the activities of criminal prosecution authorities in criminal proceedings. 46.     On 14 October 2013 the applicant appealed, stating that she had been instructed to pursue the administrative procedure by the Sabail District Court. 47.     On 4 December 2013 the Baku Court of Appeal rejected the applicant’s appeal and upheld the decision of the Baku Economic Administrative Court no.   1. 48.     On 20 December 2013 the applicant lodged a further appeal with the Supreme Court, which was rejected on 6 February 2014. D.     Publication of the status report and the civil proceedings against the prosecuting authorities 49.     As mentioned above, in response to the applicant’s complaint of 13   April 2012, on 26 April 2012 the Prosecutor General’s Office and the Baku City Prosecutor’s Office published a status report on the investigation (see paragraph 36 above). The status report noted 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. It further noted that the investigating authorities had taken a number of investigative steps, in particular:   “At the request of [the applicant], on 15 March 2012 the Prosecutor General’s Office opened a criminal case under Article 156.1 of the Criminal Code and assigned the investigation to the Investigation Department of the Baku City Prosecutor’s Office. At the initial stages of the investigation [the applicant] was questioned in the presence of her representative A. Ismayilov; she was designated a victim of crime, and her rights and obligations were explained to her. Thereafter, in order to discover the traces of crime and material evidence and to determine other circumstances important for the case, [the investigating authorities] conducted, with the participation of an expert, a criminalist, [the applicant], her representative and attesting witnesses, an inspection of the place of the incident, namely the flat located at ..., and owned by ..., where the applicant lived as a tenant, took relevant material evidence from the place of the incident, ordered and obtained expert reports, and made relevant inquiries and issued instructions relating to the case.” 50.     The status report then provided information about the period during which the applicant had rented the flat, as well as the identities of individuals to whom she had subsequently sublet the flat, and the financial arrangements between them. 51.     The status report proceeded as follows: “In addition to this, the investigation also established that envelopes containing photographs of [the applicant] were mailed under the name of Valeriy Mardanov from Moscow to [the applicant’s] registered address at ... and to the editorial office of the Yeni Müsavat newspaper. The envelopes were seized by the investigation and added to the case material. [The applicant’s] request for additional persons to be questioned as witnesses, received by the investigation on 28 March 2012, was granted, and those persons were questioned.” 52.     The status report then noted that in addition to the above steps being taken, a number of other persons were also questioned. The report disclosed the full names of those individuals, as well as their professional occupations or their relation to the applicant. They included reference to the man with whom, according to the report, the applicant was “in a liaison”, her sister, her brother, her friends and her colleagues who had visited her flat. In all, the report gave the full names of fifteen people, as well as the professional occupations of most of them. 53.     The status report concluded as follows: “On 13 and 17 April 2012 [the applicant] was invited to the investigation department in connection with the necessary investigative steps, but she did not appear; she only appeared for questioning on 26 April 2012. Since the beginning of the investigation, in addition to [the applicant] and her representative being summoned by the investigation, on 17 March, 3 April and 14   April 2012 the administration of the Baku City Prosecutor’s Office received visits from her and her representative during which they heard her requests and gave specific instructions to the investigation team for full, impartial and comprehensive conduct of the investigation.” 54.     As to the information mentioned in paragraphs 50 and 52 above, according to the applicant she herself had reluctantly provided much of the above information to the investigators at the request of a prosecutor, in order to assist the investigation, expecting that the information would be kept confidential. She had been promised by officials of the Baku City Prosecutor’s Office that the information would remain confidential. 55.     On 27 April 2012 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. 56.     On 21 June 2012 the applicant lodged a civil claim with the Sabail District Court against the Prosecutor General’s Office, the Baku City Prosecutor’s Office, Mr N.A. (an investigator at the Baku City Prosecutor’s Office) and Mr A.A. (the Baku City Deputy Prosecutor). She argued that the publication of detailed information concerning her private life in the status report of 26 April 2012 constituted an unlawful and unjustified interference with her right to respect for private life and freedom of expression, arguing that the status report was an integral part of the “slander campaign” against her, which also included the release of the “sex video” and the newspaper articles. She argued that the publication of this information had been in breach of, inter alia , Article 32 of the Constitution, Article 199 of the Code of Criminal Procedure, and Article 8 of the Convention. She sought compensation for distress in the amount of 40,000 Azerbaijani manats (AZN) and a public apology by the defendants. 57.     By a judgment of 27 July 2012 the Sabail District Court dismissed the applicant’s claims, finding that the purpose of the status report had been to counter the possibility of the public forming a negative opinion about the investigating authorities as a result of the applicant’s public complaints that the investigation was ineffective. The court found that the information in the status report was of a “general character”, and had not breached the requirements of the domestic law concerning individuals’ privacy. Specifically, it found as follows: “[The status report] contained information of a general character in order to prevent creation of a negative opinion among the public; when the information was written, the requirements of the domestic legislation concerning the protection of Khadija Ismayilova’s private and family confidentiality were not breached. Therefore, the information in [the status report] cannot be considered damaging to the plaintiff’s reputation or her private and family life.” 58.     The court also held that the applicant had been unable to demonstrate that she had suffered any non-pecuniary damage under the provisions of the Civil Code and the Code of Civil Procedure as interpreted by the Plenum of the Supreme Court. 59.     On 24 September 2012 the applicant appealed, reiterating her arguments and complaining further that the first-instance court had ignored her legal and factual arguments and had failed to rely on any legal provisions in arriving at its decision. 60.     On 20 November 2012 the Baku Court of Appeal dismissed the applicant’s appeal and upheld the first-instance court’s judgment, agreeing with its reasoning. 61.     On 29 March 2013 the Supreme Court dismissed the applicant’s appeal on points of law and upheld the lower courts’ judgments, finding that the publication of the status report had not interfered with the applicant’s private or family life and had not been in breach of the relevant domestic legal provisions. E.     The applicant’s arrest and the criminal proceedings against her 62.     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, large-scale tax evasion and abuse of power in connection with her activity as the director of Azadliq Radio during the period from 1 July 2008 to 1 October 2010. The events relating to her arrest and detention are the subject of a separate application (no. 30778/15), in which the applicant raised complaints under Articles 5, 6 § 2, 10 and 18 of the Convention. 63.     On 1 September 2015 the applicant was sentenced to seven and a half years’ imprisonment. After a series of appeals, on 25 May 2016 she was acquitted in part and her sentence was reduced to three and a half years’ imprisonment, conditionally suspended for five years. She was released from prison on the same day. II.     RELEVANT DOMESTIC LAW AND INTERNATIONAL MATERIALS A.     Constitution 64.     Article 32 of the Constitution, as in force at the material time, provided as follows: Article 32.     Right to personal inviolability “I.     Everyone has the right to personal inviolability. II.     Everyone has the right to keep secret private and family life. It is prohibited to interfere with private or family life, except in cases established by law. Everyone has the right to be protected from unlawful interference in his or her private and family life. III.     No one may collect, keep, use and disseminate information about a person’s private life without his or her consent. Except in cases prescribed by law, no one may be subjected to being followed, videotaped or photographed, tape recorded or subjected to other similar actions without his or her knowledge and against his or her objection. IV.     The State guarantees everyone the right to confidentiality of correspondence, telephone communications, post, telegraph messages and information sent by other communication means. This right may be restricted, in accordance with a procedure provided by law, in order to prevent crime or to discover the true facts when investigating a criminal case. V.     Except in cases prescribed by law, everyone may become familiar with the information collected concerning him or her. Everyone has a right to demand correction or elimination of information concerning him or her which does not correspond to the truth, is incomplete or has been collected by means of violation of the requirements of the law.” B.     Criminal Code 65.     Article 156 of the Criminal Code, as in force at the material time, provided as follows: “ Article 156.     Breach of inviolability of private life 156.1.     The illegal collecting of information constituting private and family secrets, and disseminating, selling and sharing with others of documents, video and photo materials and sound recordings of such information – is punishable by a fine in the amount of one thousand to two thousand manats, or community work for a period of two hundred and forty hours to four hundred and eighty hours, or corrective work for a period of up to one year. 156.2.     The same acts, committed by a public official using his position – is punishable by restriction of liberty for a period of up to two years, with or without deprivation of the right to hold a certain position or engage in certain activities for a period of up to three years.” 66.     Article 163 of the Criminal Code provided as follows: “ Article 163.     Hindrance of journalists’ lawful professional activities 163.1.     Hindering journalists in their lawful professional activities, that is forcing them to disseminate or refuse to disseminate information by applying violence or by threatening to apply violence – is punishable by a fine in the amount of five hundred to one thousand manats or by corrective works for a period of up to one year. 163.2.     The same act committed by a public official using his position – is punishable by corrective works for a period of up to two years or by imprisonment for a period of up to one year, with or without deprivation of the right to hold a certain position or to engage in certain activities for a period of up to three years.” C.     Code of Criminal Procedure 67.     Article 199 of the Code of Criminal Procedure (“the CCrP”) provided as follows: “ Article 199.     Protection of personal and family secrets 199.1.     During criminal proceedings measures shall be taken under this Code and other laws of the Republic of Azerbaijan to protect information constituting personal and family secrets. 199.2.     In the course of procedural activities, it shall be prohibited to unnecessarily collect, disseminate or use information relating to the private life of any person and other information of a personal nature which that person considers must be kept secret. At the request of the investigator, prosecutor or court, the participants in investigative and court procedures shall be under an obligation not to disseminate such information, and shall give a written undertaking to this effect. 199.3.     If the prosecuting authority asks any person for details of his private life on the basis of a relevant court decision, he shall have the right to ensure that there is a need to collect this information for the purposes of the ongoing criminal case; otherwise he shall have the right to refuse to divulge it. If the prosecuting authority asks the person for information concerning his own or another person’s private life on the grounds that it is necessary, the authority shall include observations confirming the need for this information in the record of the questioning or of other investigative activity. 199.4.     Evidence which discloses personal or family secrets shall be examined by the court in camera. 199.5.     Damage caused to any person as a result of a breach of the inviolability of private life or the dissemination of personal or family secrets shall be compensated under the procedure provided by the legislation of the Republic of Azerbaijan.” 68.     Article 449 of the CCrP, as in force at the material time, provided as follows: “ Article 449.     Complaints to the court concerning procedural acts or decisions of the prosecuting authority ... 449.2.     The following persons shall have the right to lodge a complaint concerning procedural acts or decisions of the prosecuting authority: ... 449.2.2.     the victim of the criminal offence and his legal representative; ... 449.3.     The persons referred to in Article 449. 2 of this Code shall have the right to lodge a complaint with the court concerning the procedural acts or decisions of the prosecuting authority in connection with the following matters: 449.3.1.     refusal to accept an application concerning a criminal offence; 449.3.2.     being in police custody or detention in remand; 449.3.3.     violations of the rights of an arrested person; 449.3.4.     torture or other cruel treatment of a detained person; 449.3.5.     opening of a criminal case and suspension or discontinuation of criminal proceedings; 449.3.6.     the compulsory conduct of an investigative procedure, the application of a coercive procedural measure, or the conduct of a search operation without a court order; 449.3.7.     the removal of defence counsel for the accused (or suspect) from the criminal proceedings.” D.     Council of Europe documents 69.     The following are extracts from Recommendation CM/Rec(2016)4 of the Committee of Ministers to member States on the protection of journalism and safety of journalists and other media actors (adopted by the Committee of Ministers on 13 April 2016 at the 1,253rd meeting of the Ministers’ Deputies): “1.     It is alarming and unacceptable that journalists and other media actors in Europe are increasingly being threatened, harassed, subjected to surveillance, intimidated, arbitrarily deprived of their liberty, physically attacked, tortured and even killed because of their investigative work, opinions or reporting, particularly when their work focuses on the misuse of power, corruption, human rights violations, criminal activities, terrorism and fundamentalism. These abuses and crimes have been extensively documented in authoritative reports published by the media, non-governmental organisations and human rights defenders. 2.     Journalists and other media actors are often specifically targeted on account of their gender, gender identity, sexual orientation, ethnic identity, membership of a minority group, religion, or other particular characteristics which may expose them to discrimination and dangers in the course of their work. Female journalists and other female media actors face specific gender-related dangers, including sexist, misogynist and degrading abuse; threats; intimidation; harassment and sexual aggression and violence. These violations are increasingly taking place online. There is a need for urgent, resolute and systemic responses. 3.     The abuses and crimes described above, which in practice are committed by both State and non-State actors, have a grave chilling effect on freedom of expression, as safeguarded by Article 10 of the European Convention on Human Rights (ETS No. 5, ‘the Convention’), including on the ability to access information, on the public watchdog role of journalists and other media actors and on open and vigorous public debate, all of which are essential in a democratic society. They are often met with insufficient efforts by relevant State authorities to bring the perpetrators to justice, which leads to a culture of impunity and can fuel further threats and violence, and undermine public trust in the rule of law. ... 6.     In order to create and secure a favourable environment for freedom of expression as guaranteed by Article 10 of the Convention, States must fulfil a range of positive obligations, as identified in the relevant judgments of the European Court of Human Rights and set out in the principles appended to this recommendation. Such obligations are to be fulfilled by the executive, legislative and judicial branches of governments, as well as all other State authorities, including agencies concerned with maintaining public order and national security, and at all levels – federal, national, regional and local. 7.     Under the terms of Article 15. b of the Statute of the Council of Europe (ETS   No.   1), the Committee of Ministers recommends that governments of member States: i.     implement, as a matter of urgency and through all branches of State authorities, the guidelines set out in the appendix to this recommendation, taking full account of the principles included there; ii.     review relevant domestic laws and practice and revise them, as necessary, to ensure their conformity with States’ obligations under the European Convention on Human Rights; iii.     promote the goals of this recommendation at the national level and engage and co-operate with all interested parties to achieve those goals.” 70.     In the Appendix to Recommendation CM/Rec(2016)4, the Committee of Ministers offers detailed guidelines to member States on how to fulfil their relevant obligations on the effective protection of journalism and safety of journalists and other media actors, combining legal, administrative and practical measures, which are organised into four   “pillars”: prevention, protection, prosecution (including a specific focus on impunity) and promotion of information, education and awareness-raising. The guidelines are based on an extensive body of principles anchored in the European Convention on Human Rights and in the relevant judgments and decisions of the Court. 71.     The following are extracts from the Report by the Commissioner for Human Rights of the Council of Europe (CommDH(2013)14, dated 6   August 2013), following his visit to Azerbaijan from 22 to 24 May 2013: “ I.     Freedom of expression 7.     The situation of freedom of expression, including freedom of the media, in Azerbaijan has been a long-standing concern among national and international observers. The latter include Commissioner Muižnieks’ predecessor, Mr Thomas Hammarberg, who also highlighted important shortcomings in these areas in a report on Azerbaijan released in 2010, as well as in observations published in 2011. As detailed below, the Commissioner notes that most of these shortcomings remain unaddressed today and that in certain areas, a clear deterioration can also be observed. 1.     Judicial harassment, intimidation and violence against journalists 8.     The Commissioner is seriously concerned at the apparent intensification of the practice, highlighted by his predecessor in 2010 and 2011, of unjustified or selective criminal prosecution of journalists and others who express critical opinions. In recent years, several media workers have been prosecuted and/or sentenced for incitement to national, racial or religious hatred and in some instances terrorism, as well as for hooliganism, tax evasion, drug possession and illegal possession of weapons, with the credibility of the relevant charges being widely challenged. As a result, a number of journalists have to serve long prison terms or carry out corrective labour and/or pay heavy fines. According to the prison census conducted by the Committee to Protect Journalists (CPJ) in December 2012, Azerbaijan ranked among the top countries jailing journalists with nine imprisoned journalists. ... 11.     In addition to facing charges and imprisonment, journalists documenting and reporting human rights violations are reported to be sometimes subjected to physical attacks. According to the Azerbaijani Institute for Reporters’ Freedom and Safety (IRFS), there have been more than 200 violent attacks against journalists since 2005 and more than 50 domestic and foreign journalists were harassed or attacked in 2011 alone. Moreover, impunity prevails and those responsible are reportedly rarely, if ever, brought to justice. The murder of the editor of Monitor magazine, Elmar Huseynov, in 2005, and the fatal stabbing of the journalist and writer Rafiq Tagi in 2011 remain unsolved to date. The Commissioner also notes that no effective and independent investigation into the death in prison of Novruzali Mammadov has been conducted. 12.     Another recent incident concerns the photo-journalist Mehman Huseynov, who faces up to five years’ imprisonment on hooliganism charges over an argument he reportedly had with law enforcement officers while covering a demonstration in Baku in May 2012. 13.     Some Azerbaijani journalists documenting on-going demolitions of properties have been prevented from carrying out their professional activities, and have also been subjected to physical attacks. On 18 April 2012, Idrak Abbasov and other journalists were attacked by approximately 20 policemen and security guards of the State oil company as they attempted to film house demolitions in the outskirts of Baku. Idrak Abbasov, a journalist with the Zerkalo newspaper and the IRFS, was taken to hospital unconscious and suffered from broken ribs, damage to his internal organs and injuries to his eyes. ... 16.     In addition to physical attacks, journalists and media workers in Azerbaijan have reported having been subject to various forms of intimidation. In March 2012, for instance, unknown persons attempted to blackmail Khadija Ismayilova, a journalist with Radio Free Europe/Radio Liberty (RFE/RL) who had notably investigated the business holdings of the family of President Aliyev. As she refused to be silenced, an intimate video of her, filmed by hidden camera, was posted on the Internet. 17.     Across the aforementioned areas, the need for a fully independent and impartial review by the judiciary of cases involving journalists and others expressing critical voices appears urgent. The Commissioner notes that a lack of independence of the justice system in Azerbaijan was highlighted in the last monitoring report of the Parliamentary Assembly of the Council of Europe, which stressed that the executive branch continues to exert influence on the judiciary, thus contributing to the continuation of the problem ... ... Conclusions and recommendations 19.     The Commissioner notes with concern that harassment of journalists and others expressing critical views has heightened in recent months, with charges being brought against them for increasingly serious crimes. The Commissioner reiterates that releasing all persons who are in detention because of the views they hold and express should be a priority for the Azerbaijani authorities in order to protect freedom of expression. 20.     The Commissioner calls on the Azerbaijani authorities to respect in all cases their obligation to initiate prompt, thorough and transparent investigations when violence or threats of violence against journalists occur, and to bring the perpetrators to justice, where punishments should reflect the seriousness of this crime. He furthermore recalls that t