CEDH · CASELAW;JUDGMENTS;COMMITTEE;ENG — 22 juillet 2021

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AZERBAIJAN (Application no. 28083/08)             JUDGMENT   STRASBOURG 22 July 2021   This judgment is final but it may be subject to editorial revision. In the case of Mahmudov and Agazade 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.   28083/08) 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 two Azerbaijani nationals, Mr Rovshan Asgar oglu Mahmudov ( Rövşən Əsgər oğlu Mahmudov – “the first applicant”) and Mr Yashar Vaqif oglu Agazade ( Yaşar Vaqif oğlu Ağazadə – “the second applicant”) (“the applicants”), on 21 May 2008; the decision to give notice to the Azerbaijani Government (“the Government”) of the complaint under Article 10 of the Convention and to declare the remainder of the application inadmissible; the parties’ observations; Having deliberated in private on 1 July 2021, Delivers the following judgment, which was adopted on that date: INTRODUCTION 1.     The applicants complained under Article 10 of the Convention that their criminal conviction for publishing an allegedly defamatory article had constituted a violation of their freedom of expression. THE FACTS 2.     The applicants were born in 1961 and 1979 respectively and live in Baku. They were represented by Mr R. Hajili and Mr E. Sadigov , lawyers based in France and Azerbaijan respectively. 3.     The Government were represented by their Agent, Mr. Ç. Əsgərov. 4.     The facts of the case, as submitted by the parties, may be summarised as follows. 5.     The first applicant was the chief editor of the Müxalifət newspaper (“the newspaper”). The second applicant was a journalist working for the newspaper. 6.     In its issue of 24 February 2007, the newspaper published an article entitled “AMAY is the Aliyev family’s trademark. They cheated a foreign businessman out of 21 million dollars” (“ A.M.A.Y. Əliyevlər ailəsinin ticarət nişanı. Onlar əcnəbi iş adamına 21 milyon dollar atıb ”), authored by the second applicant. The article was accompanied by a picture of J.A., who was a member of the National Academy of Sciences and a member of the Milli Mejlis (Parliament), and his name was printed in full in the article itself. 7.     On 14 March 2007 J.A. lodged a criminal complaint with the Yasamal District Court using the procedure of a private prosecution. He complained that the article clearly referred to him and accused him in a defamatory manner of committing serious crimes, and he requested the court to convict the applicants under Articles 147.1 (defamation) and 147.2 (defamation entailing an accusation of committing a serious crime) of the Criminal Code (see paragraph 16 below). 8.     In the course of the court proceedings, the applicants argued that the article was a compilation of various facts, pertaining to the relationship between the AMAY business entity and its counterpart, which had been published previously in the press. Moreover, it was widely known that J.A. had been a beneficiary of the AMAY business entity. 9.     By a judgment of 16 May 2007, the Yasamal District Court convicted the applicants of defamation under Articles 147.1 and 147.2 of the Criminal Code. The court found that they had not submitted any evidence in support of their argument that the facts referred to in the impugned article had been previously published elsewhere. Without providing a detailed analysis in that respect, the court considered that the contents of the article in question, in particular its headline and such phrases as “[J.A.] staying at the head of a corruption wheel” ( rüşvət çarxının başında duran C.Ə. ), had been phrased as statements of fact. The court further found that the applicants had failed to submit any proof in support of their accusations that J.A. had committed serious crimes. Moreover, the court rejected their allegations that the article had been written within the limits of acceptable criticism and found that the statements in question constituted deliberate defamation. 10.     The court sentenced each applicant to six months’ imprisonment under Article 147.1 of the Criminal Code and two years’ imprisonment under Article 147.2 of the Criminal Code. By merging these sentences, the court imposed a total sentence of two years and six months’ imprisonment in respect of each applicant. They were arrested in the courtroom on the same day (16 May 2007). 11.     The applicants appealed against that judgment, claiming that their criminal conviction had amounted to a violation of their right to freedom of expression. They also argued that the Yasamal District Court had wrongly shifted the burden of proof by requesting them to present evidence in support of their accusations against J.A., whereas it was the latter’s obligation to convince the court that he had not committed the crimes of which he had been accused in their article. 12.     On 16 August 2007 the Baku Court of Appeal dismissed the applicants’ appeal, finding the first-instance court’s judgment justified. 13.     On 24 September 2007 the applicants lodged a cassation appeal, reiterating their previous complaints. 14.     On 28 December 2007 the applicants were released from serving the remainder of their sentence after being pardoned by a presidential decree. 15.     On 8 January 2008 the Supreme Court upheld the lower courts’ judgments. RELEVANT LEGAL FRAMEWORK 16 .     The relevant provisions of the domestic legislation are described in detail in Mahmudov and Agazade v. Azerbaijan (no.   35877/04, §§ 17-18 and 22, 18 December 2008). Furthermore, at the material time, Article 147.2 of the Criminal Code provided that defamation entailing an accusation of committing a serious or particularly serious crime was punishable by correctional labour for a period of up to two years, or restriction of liberty for a period of up to two years, or imprisonment for a period of up to three years. THE LAW ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION 17.     The applicants complained that their criminal conviction following the publication of a newspaper article had amounted to unjustified interference with their right to freedom of expression. They relied on Article   10 of the Convention, 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 18.     The Court notes that the application is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. Merits The parties’ submissions 19.     The applicants maintained their complaint. They submitted that the domestic courts had wrongfully limited the examination of their case to the assessment of a few phrases, but not of the entire impugned article. Moreover, the resulting penalties had been grossly excessive and disproportionate. 20.     The Government admitted that the applicants’ criminal conviction by the national courts following the publication of an article authored by the second applicant in a newspaper of which the first applicant was the editor had amounted to interference with their right to freedom of expression, but argued that it had been unquestionably prescribed by law and had pursued the legitimate aim of protecting the reputation and rights of others. They further submitted that the interference had been necessary in a democratic society. 21.     The Government further submitted that the article had contained no value judgments and had made untrue statements suggesting that J.A. had committed serious criminal offences. Before the domestic courts, the applicants had not presented any evidence in support of their accusations. Instead, they had merely argued that it was J.A.’s obligation to prove that their statements were not false. In the Government’s view, the domestic courts had sufficiently reasoned their choice of sanctions, preferring the imposition of a more severe one. The Court’s assessment 22.     In the present case, the Court notes that it is not in dispute between the parties that the applicants’ criminal conviction constituted an interference with the exercise of their right to freedom of expression, as guaranteed by Article   10 of the Convention. That is also the Court’s opinion. 23.     The Court observes that the interference in question was indisputably based on Articles 147.1 and 147.2 of the Criminal Code (see paragraph 16 above). It also pursued the legitimate aim of protecting the reputation or rights of others, within the meaning of Article 10 § 2 of the Convention. It remains to be established whether the interference was “necessary in a democratic society”. 24.     As regards the necessity of the interference, the Court refers to the principles established in its case-law in relation to freedom of expression, which are summarised in Bédat v. Switzerland ([GC], no.   56925/08, § 48, 29   March 2016). 25.     In that regard, the Court notes that there is a significant degree of similarity between the legal issues raised by the applicants under Article 10 of the Convention in the present case and those in the previous case against Azerbaijan concerning the criminal conviction of the same applicants for defamation (see Mahmudov and Agazade v. Azerbaijan , no. 35877/04, §§   23-54, 18   December 2008). 26.     In particular, as in the latter case, the domestic courts in the present case, without examining the question whether the impugned phrases could be considered to be value judgments, concluded that they amounted to deliberate defamation, containing information which the applicants had been unable to prove (ibid., § 42). 27.     The Court also considers it necessary to draw attention to the severity of the penalties imposed on the applicants, who were convicted in criminal proceedings and given sentences of two years and six months’ imprisonment, notwithstanding the availability of lighter penalties under the domestic law, and spent more than seven months in detention. The Court reiterates in this connection that a criminal conviction is a serious sanction, having regard to the existence of other means of intervention and rebuttal (see Perinçek v. Switzerland [GC], no. 27510/08, § 273, ECHR 2015). 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 applicants of such severe sanctions (see Mahmudov and Agazade , cited above, §§ 50-51). 28.     Accordingly, the Court considers that the criminal sanction imposed was disproportionate to the legitimate aim pursued by the applicants’ conviction for defamation. Therefore, the domestic courts in the instant case went beyond what would have amounted to a “necessary” restriction on the applicants’ freedom of expression (ibid., §§ 52-54). 29.     There has accordingly been a violation of Article 10 of the Convention. APPLICATION OF ARTICLE   41 OF THE CONVENTION 30.     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 Pecuniary damage 31.     The applicants claimed 6,200 euros (EUR) and EUR 5,800 respectively in respect of pecuniary damage for loss of earnings during their imprisonment. In support of their claims, they each submitted written statements from the newspaper Müxalifət confirming that, during the months preceding and following their detention, they had received an average monthly salary of EUR 730 and EUR 680 respectively. The applicants each further claimed EUR   4,500 in respect of pecuniary damage, submitting that their families had spent those sums on sending food to them and regularly visiting them in prison. 32.     The Government contested those claims as unsubstantiated and excessive. 33.     As regards the applicants’ claims for loss of earnings, the Court reiterates that, under Rule 60 of the Rules of Court, any claim for just satisfaction must be itemised and submitted in writing, together with the relevant supporting documents or vouchers, failing which the Court may reject the claim in whole or in part. In the present case, even assuming that there is a causal link between the damage claimed and the violations found, the Court observes that the applicants did not submit relevant documentary evidence supporting this part of their claim. In particular, in the absence of any employment contract, payslip, bank account statement or other document confirming their loss of salary, the Court cannot accept the two written statements from the newspaper as relevant documentary evidence. Moreover, the applicants failed to make submissions as to whether there were any particular circumstances preventing them from submitting any of the above ‑ mentioned documents confirming their loss of salary (see Haziyev v.   Azerbaijan , no. 19842/15, § 48, 6 December 2018). 34.     As regards the part of the claim concerning the sums that their families had spent on sending them food and regularly visiting them in prison, even assuming that there is a causal link between the damage claimed and the violations found, the Court notes that the applicants did not submit relevant documentary evidence supporting this claim. 35.     For the above reasons, the Court rejects the applicants’ claims in respect of pecuniary damage. Non-pecuniary damage 36.     Each applicant claimed EUR 50,000 in respect of non-pecuniary damage. 37.     The Government argued that the amounts claimed were unjustified. 38.     Making an assessment on an equitable basis as required by Article   41 of the Convention, the Court awards each applicant EUR 1,200 in respect of non-pecuniary damage, plus any tax that may be chargeable. Costs and expenses 39.     The applicants also claimed EUR 8,672 in respect of costs and expenses for the legal fees incurred before the domestic courts and the Court. In support of their claim, they submitted a contract for legal services concluded with their representatives. They also requested that any compensation awarded under that head be paid directly into the bank account of their representative, Mr R. Hajili. 40.     The Government contested this claim as unsubstantiated and excessive. 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 have been actually and necessarily incurred and were reasonable as to quantum. In the present case, regard being had to the information in its possession and the above criteria, the Court considers it reasonable to award the total sum of EUR 1,000 to cover costs under all heads, to be paid directly into the bank account of their representative, Mr R. Hajili. Default interest 42.     The Court considers it appropriate that the default interest 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, 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, 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, to each applicant in respect of non-pecuniary damage; (ii)   EUR 1,000 (one thousand euros), plus any tax that may be chargeable to the applicants, in respect of costs and expenses, to be paid directly into the bank account of their representative, Mr   R. Hajili; (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; Dismisses the remainder of the applicants’ claim for just satisfaction. Done in English, and notified in writing on 22 July 2021, pursuant to Rule   77   §§   2 and 3 of the Rules of Court.   Martina Keller   Lado Chanturia Deputy Registrar   President