CEDH · CASELAW;JUDGMENTS;COMMITTEE;ENG — 8 juillet 2021

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AZERBAIJAN (Application no. 52584/09)             JUDGMENT   STRASBOURG 8 July 2021   This judgment is final but it may be subject to editorial revision. In the case of Hasanov v. Azerbaijan, The European Court of Human Rights (Fifth Section), sitting as a Committee composed of:   Lado Chanturia, President,   Lətif Hüseynov,   Mattias Guyomar, judges, and Martina Keller, Deputy Section Registrar, Having regard to: the application (no. 52584/09) 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, Mr Ali Rashid oglu Hasanov ( Əli Rəşid oğlu Həsənov   – “the applicant”), on 10 September 2009; the decision to give notice to the Azerbaijani Government (“the Government”) of the application; the parties’ observations; Having deliberated in private on 17 June 2021, Delivers the following judgment, which was adopted on that date: INTRODUCTION 1.     The application concerns the criminal conviction of the applicant, a journalist and chief editor of a newspaper, for publishing two articles concerning a female war veteran. The applicant invoked Articles 6 and 10 of the Convention. THE FACTS 2.     The applicant was born in 1951 and at the time of the events lived in Baku. He was represented by Mr E. Sadigov, Mr R. Hajili and Mr B. Boev, lawyers based in Azerbaijan, France and the United Kingdom, respectively. 3.     On 22 November 2018 the Court was informed of the applicant’s death on 20 March 2012 and the wish of his wife, Ms Narmina Hasanova, to continue the proceedings before the Court in his stead. Ms Narmina Hasanova authorised Mr E. Sadigov to represent her before the Court. 4.     The Azerbaijani Government (“the Government”) were represented by their Agent, Mr Ç. Əsgərov . 5.     The facts of the case, as submitted by the parties, may be summarised as follows. 6.     The applicant was a journalist and the acting chief editor of Ideal newspaper. 7.     On 16 August 2008 the newspaper published an article entitled “The father-in-law of M.M.’s son, H.M.’s godfather...” (“ M.M-un qudası, H.M ‑ un kirvəsi... ”) under the byline of Rza, which contained the following passages (translated from Azerbaijani): “Generally, I do not know why these ignoble, dishonourable, forlorn, insolent people belonging to the female sex meet only us ... All of them speak on behalf of respected individuals ... Some of them even refer to themselves in different ways: Karabakh’s Hajar [wife of Nabi, epic Azerbaijani hero], Karabakh’s Nabi and so on. There is no one to take her by the ear and explain that Hajar was from Zangazur. Nabi was also from Zangazur and they did not sell their lands, they did not help the people to date. The creature belonging to the female sex who claimed to be Karabakh’s Hajar understood that she could be a har[lot] ... hero ( qəh...rəman ) of the Karabakh, but ... thankfully, she took our offer into consideration and disappeared.” 8.     On 29 August 2008 the newspaper published another article entitled “A teacher or mummy-rose [pejorative used for a person who runs a brothel]?” (“ Müəllimə yoxsa mamaroza? ”) under the byline of Farid Aliyev, which contained the following passages (translated from Azerbaijani): “A woman originally from Aghdam had a difficult life. Although she was a woman, she had also been in war zones. Together with [S.M.], who was presenting herself as the beloved of S.H. and smugly calling herself Karabakh’s Hajar, she had very warm days with soldiers in the border zone.” 9.     On an unknown date S.M., a female veteran of the war between Azerbaijan and Armenia over Nagorno-Karabakh, who was known by the nickname “Karabakh’s Hajar” in the media for her active involvement in the war, lodged a criminal complaint with the Nasimi District Court against N.G., who was the founder of Ideal newspaper, using the private prosecution procedure. 10.     At the preliminary hearing held on 22 October 2008, the applicant, having been summoned as a defence witness, informed the court that he had published a number of articles in Ideal newspaper under different bylines, including those of Rza and Farid Aliyev, and that he had written the articles in question. Relying on the applicant’s witness statement and finding that S.M. had failed to submit any evidence in support of her allegations, the Nasimi District Court dismissed the claim against N.G. as manifestly ill ‑ founded and discontinued the proceedings. 11.     On 27 October 2008 S.M. lodged another criminal complaint with the Nasimi District Court, this time against the applicant, using the private prosecution procedure. She argued that the articles in question had damaged her good name and reputation by making deliberately false statements which had degraded her honour and dignity. She requested that the court convict the applicant of defamation and insult under Articles 147.2 and 148 of the Criminal Code. 12 .     In the course of the court proceedings, the applicant pleaded not guilty and stated that, while he had written several articles for the newspaper, he had not been the author of the ones in question. Moreover, he had never known S.M. and did not have any reason to insult a person unknown to him. 13 .     On 14 November 2008 the Nasimi District Court convicted the applicant of insult under Article 148 of the Criminal Code and sentenced him to six months’ imprisonment. The finding of guilt was based on the following evidence: (i)     the decision of the Nasimi District Court of 22 October 2008 stating that the applicant, while being heard as a witness, had informed the court that he had previously published a number of articles with the newspaper under the bylines of Rza and Farid Aliyev, and that he had been the author of the articles in question; (ii)     the fact that the plaintiff in the case had been referred to by her full name in the article of 29 August 2008; and (iii)     the use of such expressions as “the creature who belonged to the female sex who claimed to be Karabakh’s Hajar”, “Karabakh’s har[lot] ...” and “[S.M.] ... smugly calling herself Karabakh’s Hajar ... had very warm days with soldiers in the border zone”, which constituted repeated, deliberate and insulting humiliation of the honour and dignity of a person through the mass media. 14 .     The first-instance court found the repeated publication of the articles to be an aggravating circumstance. It also listed the commission of a crime with greed and other malicious intent as another aggravating circumstance, without referring to any particular substantiation for that finding. 15 .     On 2 December 2008 the applicant appealed against that judgment, arguing that his conviction was based solely on the statements he had allegedly given during the prior proceedings that resulted in the Nasimi District Court’s decision of 22 October 2008. He submitted that the first ‑ instance court had failed to give reasons for its decision to apply the most severe sentence, in that it had ignored numerous mitigating factors that would have favoured a less severe sanction and had not referred to anything in support of the second aggravating factor it had found. The applicant further complained that the lower court had not ordered a comparative forensic examination of the articles in question and those that he had published in another newspaper in order to establish whether they had been written by the same author; nor had it ordered a forensic linguistic examination of the impugned phrases within the context of the articles to determine whether they constituted criticisms or insults. 16 .     On 30 December 2008 the Baku Court of Appeal rejected the appeal, endorsing the reasoning of the first-instance court in a summary fashion. The appellate court made no mention of the applicant’s particular complaints. 17 .     On an unspecified date the applicant lodged a cassation appeal against that decision, essentially reiterating the arguments he had already raised before the appellate court. 18 .     On 11 March 2009 the Supreme Court dismissed the cassation appeal. 19.     On 10 April 2009 the applicant was released from serving the remainder of his sentence after being pardoned by a presidential decree. 20.     The applicant died on 20 March 2012. RELEVANT LEGAL FRAMEWORK 21 .     At the material time, the relevant provisions of the Criminal Code provided as follows: Article 148. Insult “Insult, that is, the deliberate humiliation of the honour and dignity of a person, expressed in an obscene manner in a public statement, a publicly exhibited work of art or in the mass media is punishable by a fine in the amount of three hundred to one thousand manats, or by community work for a term of up to two hundred and forty hours, or by correctional labour for a term of up to one year, or by imprisonment for a term of up to six months.” THE LAW Preliminary issue 22.     The Court notes at the outset that the applicant died after lodging the application and that his wife, Ms Narmina Hasanova, has expressed her wish to continue the proceedings before the Court in his stead. The Government did not dispute the standing of the applicant’s wife to pursue the application in the applicant’s stead. 23.     The Court notes that in various cases in which an applicant has died in the course of the Convention proceedings, it has taken into account the statements of the applicant’s heirs or of close family members expressing the wish to pursue the proceedings before the Court (see, among other authorities, Jėčius v. Lithuania , no. 34578/97, § 41, ECHR 2000 ‑ IX; Pisarkiewicz v. Poland , no. 18967/02, §§ 30-33, 22 January 2008; and Ergezen v. Turkey , no. 73359/10, §§ 27-30, 8 April 2014). The Court has accepted that the next-of-kin or heir may in principle pursue the application, provided that he or she has sufficient interest in the case (see Centre for Legal Resources on behalf of Valentin Câmpeanu v.   Romania [GC], no.   47848/08, § 97, ECHR 2014, and Ksenz and Others v. Russia , nos.   45044/06 and 5 others, § 86, 12 December 2017). In view of the above and having regard to the circumstances of the present case, the Court accepts that Ms Narmina Hasanova has a legitimate interest in pursuing the application in her late husband’s stead (see Tagiyev and Huseynov v.   Azerbaijan , no. 13274/08, § 24, 5 December 2019 ). However, for reasons of convenience, the text of this judgment will continue to refer to Mr Ali Hasanov as “the applicant”, even though only Ms Narmina Hasanova is now to be regarded as having the status of applicant before the Court (see Isayeva v. Azerbaijan , no. 36229/11, § 62, 25 June 2015, and Tagiyev and Huseynov , cited above, § 24). ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION 24.     Relying on Articles 6 and 10 of the Convention, the applicant complained that his criminal conviction for the publication of the articles had not been fair and had amounted to an unjustified interference with his right to freedom of expression. Having regard to the circumstances of the case, the Court considers that this complaint does not raise a separate issue under Article 6 of the Convention and falls to be examined solely under Article 10 of the Convention (see Mahmudov and Agazade v. Azerbaijan , no.   35877/04, § 23, 18 December 2008), which reads as follows: “1.     Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises. 2.     The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.” Admissibility 25.     In their further observations made in reply to those of the applicant, the Government submitted that the applicant’s signature on the contract for legal services in the proceedings before the Court did not correspond to his signature on the authority form and that it had been forged at some date after his death. In the Government’s view, such a forgery constituted abuse of the right of individual application. Accordingly, they submitted that the application should be declared inadmissible in accordance with Article 35 §   3 (a) of the Convention. 26.     The Court notes that the Government did not contest the veracity of the applicant’s signature on the application to the Court or on the authority form empowering the representative to act on his behalf. Accordingly, there is nothing in the case file indicating that the applicant abused his right of individual application, and therefore the Court dismisses the Government’s objection as irrelevant. 27.     The Court further notes that this complaint is neither manifestly ill ‑ founded nor inadmissible on any other grounds listed in Article   35 of the Convention. It must therefore be declared admissible. Merits The parties’ submissions 28.     The applicant maintained his complaint, submitting that there had been no pressing need for his conviction and imprisonment, which had been disproportionate and unnecessary in a democratic society. 29.     The Government submitted that the interference had been “prescribed by law”, had pursued the legitimate aim of protecting the reputation and rights of others and had been “necessary in a democratic society”. As to the proportionality of the interference, the Government submitted that the sanction imposed on the applicant had been proportionate in its nature to the legitimate aim pursued. Specifically, the domestic courts had taken into account the existence of aggravating factors and had chosen to apply a more severe sentence. The Court’s assessment 30.     The Court accepts that the applicant’s conviction constituted an interference with his right to freedom of expression. The interference had a lawful basis, in particular Article 148 of the Criminal Code, which allowed an aggrieved party to pursue a private prosecution for humiliation of that party’s honour and dignity through the mass media (see paragraph 21 above). It also pursued the legitimate aim of protecting the reputation or rights of others within the meaning of Article 10 § 2. It remains to be established whether the interference was “necessary in a democratic society”. 31.     In reviewing under Article 10 of the Convention the domestic courts’ decisions, the Court has to satisfy itself that the national authorities applied standards which were in conformity with the principles embodied in Article 10 and relied on an acceptable assessment of the relevant facts (see Perinçek v.   Switzerland [GC], no. 27510/08, § 196, ECHR 2015 (extracts)). The general principles laid down in the Court’s case-law concerning the margin of appreciation and the balancing of the right to freedom of expression against the right to respect for private life were summarised in Axel Springer AG v. Germany ([GC], no. 39954/08, §§ 85-95, 7 February 2012). 32.     In this connection, the Court notes that when the domestic courts considered S.M.’s claim, they limited themselves to finding that the impugned statements had tarnished her honour and dignity. They did not address the context in which the statements had been made or the aim pursued by the applicant in publishing the article, despite the applicant’s request to have a forensic linguistic examination conducted for precisely that purpose (see paragraph 15 above). Nor did they take into account the applicant’s position as a newspaper editor and a journalist or provide any analysis concerning the public-figure status of the plaintiff, notwithstanding the presence of circumstances indicating that these were relevant considerations. Furthermore, the domestic courts did not attempt to perform a balancing exercise between the need to protect the plaintiff’s reputation and the applicant’s right to freedom of expression. Those failings call for the conclusion that the domestic courts did not “apply standards which were in conformity with the principles embodied in Article 10” and failed to give relevant and sufficient reasons to justify the interference (see Terentyev v.   Russia , no. 25147/09, § 24, 26   January 2017, and Rashkin v. Russia , no.   69575/10, § 18, 7 July 2020). 33.     The Court also notes that the applicant was convicted and sentenced to six months’ imprisonment – the maximum sanction available under the relevant provisions of the Criminal Code. The sanction was undoubtedly severe, especially considering that less severe alternatives, such as a fine or correctional labour, were available under domestic law. Moreover, although sentencing is in principle a matter for the national courts, the Court does not consider that the circumstances of the present case disclosed any justification for the imposition on the applicant of such severe sanctions, which were capable of producing a chilling effect on the exercise of freedom of expression (see Fatullayev v. Azerbaijan , no. 40984/07, § 128, 22 April 2010, and Tagiyev and Huseynov , cited above, § 49). 34.     The foregoing considerations are sufficient to enable the Court to conclude that the applicant’s criminal conviction was not “necessary in a democratic society”. There has accordingly been a violation of Article 10 of the Convention. APPLICATION OF ARTICLE   41 OF THE CONVENTION 35.     Article   41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” Damage 36.     The applicant claimed 21,000 euros (EUR) in respect of non ‑ pecuniary damage. 37.     The Government submitted that the amount claimed by the applicant was unsubstantiated and excessive and that, in any event, the finding of a violation would constitute sufficient just satisfaction. 38.     The Court considers that the applicant has suffered non-pecuniary damage as a result of the violation found. Ruling on an equitable basis, the Court awards him the sum of EUR 1,200 in respect of non-pecuniary damage, plus any tax that may be chargeable. Costs and expenses 39.     The applicant also claimed EUR 6,500 for legal costs incurred in the proceedings before the Court. In support of his claim, he submitted a contract with one of his representatives, Mr E. Sadigov, dated 2 November 2008 for legal services in the proceedings before the Court. 40.     The Government contested this claim. 41.     According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these were actually and necessarily incurred and are reasonable as to quantum. Having regard to the documents in its possession and the amount of legal work necessary in the present case, the Court considers it reasonable to award the total sum of EUR 500 to cover costs under all heads. Default interest 42.     The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT, UNANIMOUSLY, Holds that the applicant’s wife, Ms Narmina Hasanova, has standing to continue the present proceedings in the applicant’s stead; Declares the application admissible; Holds that there has been a violation of Article 10 of the Convention; Holds (a)   that the respondent State is to pay Ms Narmina Hasanova within three months, the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement: (i)         EUR 1,200 (one thousand two hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage; (ii)       EUR 500 (five hundred euros), plus any tax that may be chargeable to Ms Narmina Hasanova, 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 amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; Dismisses the remainder of the claim for just satisfaction. Done in English, and notified in writing on 8 July 2021, pursuant to Rule   77   §§   2 and 3 of the Rules of Court.   Martina Keller   Lado Chanturia Deputy Registrar   President