BAILII is celebrating 24 years of free online access to the law! Would you
consider making a contribution?
No donation is too small. If every visitor before 31 December gives just £1, it
will have a significant impact on BAILII's ability to continue providing free
access to the law.
Thank you very much for your support!
[New search]
[Contents list]
[Printable RTF version]
[Help]
FIRST
SECTION
CASE OF MAHMUDOV AND AGAZADE v. AZERBAIJAN
(Application
no. 35877/04)
JUDGMENT
STRASBOURG
18
December 2008
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial
revision.
In the case of Mahmudov and Agazade v. Azerbaijan,
The
European Court of Human Rights (First Section), sitting as a Chamber
composed of:
Christos Rozakis, President,
Nina
Vajić,
Anatoly Kovler,
Elisabeth
Steiner,
Khanlar Hajiyev,
Giorgio
Malinverni,
George Nicolaou, judges,
and Søren
Nielsen, Section
Registrar,
Having
deliberated in private on 27 November 2008,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 35877/04) 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) and Mr Yashar Vaqif oglu Agazade (Yaşar
Vaqif oğlu Ağazadə) (“the applicants”),
on 9 August 2004.
- The
applicants were represented by Mr I. Aliyev and Mr E. Ibrahimov,
lawyers practising in Baku. The Azerbaijani Government (“the
Government”) were represented by their Agent, Mr C. Asgarov.
- The
applicants alleged, in particular, that their conviction for
publishing an allegedly defamatory article had constituted a
violation of their freedom of expression and right to a fair trial.
- On
14 October 2005 the Court decided to give notice of the application
to the Government. It also decided to examine the merits of the
application at the same time as its admissibility (Article 29 §
3).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicants were born in 1961 and 1979 respectively and live in Baku.
- The
first applicant was the acting chief editor of the Müxalifət
newspaper. The second applicant was a journalist working for the same
newspaper.
- In
its issue of 12-18 April 2003, the newspaper published an article
named “Grain Mafia in Azerbaijan” (“Azərbaycanda
taxıl mafiyası”), under the by-line of Samir
Sharif, a pseudonym of the second applicant. The article was
accompanied by a picture of J.A., who was a member of the National
Academy of Sciences, a well-known expert in agriculture, and a member
of the Milli Mejlis (Parliament). The article generally spoke about a
number of problems in the country's agricultural sector. It also
appeared to imply, amongst other things, that J.A. was in charge of
the breeding of certain experimental crops in “experimental”
fields in several agricultural regions. J.A.'s name was printed in
full in the article itself.
- Specifically,
the article read as follows (translated from Azerbaijani):
“[President] Heydar Aliyev's famous conference in
Sumgait was rich in memorable moments. Naturally, in the essence of
this richness, it is impossible not to notice the scale of
arbitrariness and corruption and how the entire nation is held up to
ridicule. But we are not talking about the dismissal ... of [certain
government officials] for reasons which remain obscure to many.
We are also not talking about how it was far from
logical to accuse of stinginess a businessman named Isgandarov who
has spent more than 30,000 dollars on charity in one year, while not
a single member of the clan which has misappropriated billions of
dollars of the country's wealth is willing to expend a penny on
development of our motherland. What is interesting is that the Head
of State accused the people, whom he had turned into an object of
reproach, of nepotism ... and monopolisation of the private sector in
Sumgait. Aliyev says that he has refused to appoint his relatives to
any [official] positions despite [having received] insistent requests
in this regard. But what he does not say is that there is no person
in this country other than the son Aliyev who simultaneously occupies
four “armchairs”. Speaking of seizing control over
[well-to-do sectors of economy], today even a baby who is just
learning to speak knows which people control such a huge sphere of
the Azerbaijani economy as the agricultural sector. Thousands of
hectares of fertile land in Azerbaijan have been turned into an
experimental zone for “valuable sorts” of grains. For
almost ten years the agricultural sector has been plundered as if it
were in the private ownership of the certain known person.
During the Soviet period agriculture was the main
contributor to the gross domestic product and the main area of the
population's employment. However, in the Aliyev era of independence,
the agrarian sector, like all other sectors of the economy, has been
monopolised to serve the interests of peri-governmental circles. With
the exception of grain and livestock farming, other leading branches
of agriculture have slumped. The productivity level of poultry
farming has decreased from 143,000 tonnes in 1995 to 35,000 tonnes in
2002. Viticulture can be said to have been completely ruined, while
cotton growing is in such an acute state of decline that within the
last 10 years its share in the total agricultural product has
decreased from 12-13% to 2%. As a result of appropriation of the
cotton-processing industry by a group of monopolists, cotton planters
are being seriously exploited. At the moment fourteen of the
twenty-one cotton-ginning plants existing in the country are
controlled by a company named MKT. This company's share of all the
cotton processed in the country last year was 85%. [A description is
given of various specific monopolistic policies pursued by this
company.]
The development of the grain-growing industry is under
the special care of a group [of persons] who have monopolised this
sphere. For two years the people in the provinces either cannot sell
the grain they have grown under considerable hardship or, in the
best-case scenario, are forced to sell it for 350-400 manats per
kilogramme. For example, during the last harvest season in such big
grain-growing regions as Saatli, Beylagan and Agjabedi, the local
executive authorities either prevented the major grain buyers from
Baku from entering these regions or forced them to buy grain from
specified fields. [This was done] for a simple reason – in
order to sell, in a timely manner, all the grain from the thousands
of hectares of [J.A.'s] 'experimental' fields in these regions. It is
clear that, as simple peasants do not possess necessary facilities
(such as special buildings) for storage of grain, they are forced to
sell their crop at low prices.
The land reform is often spoken about. But at the same
time several important issues are forgotten. Firstly, as many as half
of those who are given a share of land do not possess even the
minimum facilities to cultivate it. Secondly, thousands of hectares
of fertile land, labelled as 'state land fund' during the land
reform, are held hostage by the 'agrarian mafia', and not a single
penny goes to the state budget from its lease.
Nowadays this mafia ... bends over backwards to obtain
from the State about 250 million dollars in yearly subsidies for the
development of agriculture. But no one is asking the Minister of
Agriculture ... why, if he cares so much about the development of
agriculture, he sells the equipment donated by the Japanese
government, and not even for discount prices, but for prices higher
than the ex-factory price. These people – those who sell a
plough, which they have obtained free of charge, to the peasant for
four to five thousand dollars, a tractor for fourteen to fifteen
thousand dollars, and a grain combine harvester for fifty thousand
dollars – now they want to get money from the State to revive
agriculture. Sorry, but we aren't duped by you. Your 'Programme for
the Development of Agriculture to 2015', which you have submitted to
the Government [for implementation], is not a programme aimed at
supporting the peasant, but a programme allowing you to increase your
personal wealth at a cost of 150-200 million dollars which you snatch
from the State budget every year.”
- On 23 April 2003 J.A. filed a criminal complaint with
the Yasamal District Court using the procedure of a private
prosecution. He claimed that the article clearly referred to him in a
defamatory, slanderous and insulting manner. Specifically, he cited
the following extracts as defamatory:
“... today even a baby who is just learning to
speak knows which people control such a huge sphere of the
Azerbaijani economy as the agricultural sector. Thousands of hectares
of fertile land in Azerbaijan have been turned into an experimental
zone for “valuable sorts” of grains. For almost ten years
the agricultural sector has been plundered as if it were in the
private ownership of the certain known person. ...
The development of the grain-growing industry is under
the special care of a group [of persons] who have monopolised this
sphere. For two years the people in the provinces either cannot sell
the grain they have grown under considerable hardship or, in the
best-case scenario, are forced to sell it for 350-400 manats per
kilogramme. For example, during the last harvest season in such big
grain-growing regions as Saatli, Beylagan and Agjabedi, the local
executive authorities either prevented the major grain buyers from
Baku from entering these regions or forced them to buy grain from
specified fields. [This was done] for a simple reason – in
order to sell, in a timely manner, all the grain from the thousands
of hectares of [J.A.'s] 'experimental' fields in these regions. ...”
- J.A. argued that the article clearly implied that he
was in close contact with certain alleged criminal circles and thus,
in essence, accused him of serious crimes such as the
misappropriation of state funds allocated for agricultural research.
He contended that the second applicant had deliberately made false
statements damaging to his reputation and that the first applicant,
as an acting chief editor, had failed to prevent this. He requested
the court to convict the applicants under Articles 147.1 (defamation)
and 148 (insult) of the Criminal Code.
- During
the trial, the applicants argued that the article had not contained
any defamatory or insulting statements about J.A. They maintained
that the phrase “the certain known person” did not refer
to J.A. The picture of J.A. was placed in the article because of his
general achievements in the development of grain farming. Lastly,
they noted that the article was concerned with the general situation
of the agricultural sector and that it contained no information
specifically accusing J.A. of any criminal activity.
- By
a judgment of 20 May 2003, the Yasamal District Court convicted the
applicants of defamation and insult under Articles 147.1 and 148
of the Criminal Code. Having examined the extracts from the article
quoted above (see paragraph 9), the court noted that the applicants'
denial of the fact that the article had anything to do with J.A. was
groundless, because the text of the article clearly mentioned J.A.'s
name in full and clearly stated that thousands of hectares of grain
fields belonged to him. The court went on to find that:
“... expression by Y. Agazade of the idea of the
existence of a mafia that does not exist in reality and his
dissemination of this idea through the mass media constitutes
defamation, that is, deliberate dissemination of false information
tarnishing J.A.'s honour and dignity and damaging his reputation.
Therefore, the court finds that, by disseminating [through the mass
media] the information about the existence of a mafia that does not
exist in reality, Y. Agazade committed an offence under Article 147.1
of the Criminal Code, and that, by making and disseminating the
statement 'in order to sell, in a timely manner, all the grain from
the thousands of hectares of [J.A.'s] 'experimental' fields in these
regions', Y. Agazade committed an offence under Article 148 of
the Criminal Code. The other accused person, R. Mahmudov, bears the
same criminal responsibility for [allowing such dissemination as the
newspaper's acting chief editor]. Accordingly, R. Mahmudov and
Y. Agazade must be found guilty under Articles 147.1 and 148 of the
Criminal Code.”
- The
court sentenced each applicant to three months' imprisonment under
Article 147.1 of the Criminal Code and three months' imprisonment
under Article 148 of the Criminal Code. By partially merging these
sentences, the court fixed a total sentence of five months'
imprisonment in respect of each applicant. At the same time, applying
section 2.3 of the Milli Mejlis (Parliament) Resolution on Amnesty
in Connection with the Anniversary of the Victory over Fascism in
World War II, dated 6 May 2003, the court exempted them from serving
their sentences.
- The
applicants appealed. They argued that the article discussed a number
of problems in the agricultural sector and did not specifically
relate to J.A. The fact that it contained J.A.'s picture and a
statement that he possessed thousands of hectares of grain fields did
not amount to defamation or insult. In respect of that statement,
they argued that it was a generally known fact and did not offer any
evidence in its support. The applicants also argued that J.A. and the
Yasamal District Court had wrongly construed the totality of
statements contained in the article as defamatory whereas their
intended meaning was harmless.
- On
16 July 2003 the Court of Appeal upheld the Yasamal District Court's
judgment.
- On
2 March 2004 the Supreme Court upheld the lower courts' judgments.
II. RELEVANT DOMESTIC LAW
- Articles
47 and 50 of the Constitution guarantee freedom of thought and speech
and freedom of the mass media.
- Article
147.1 of the Criminal Code provided as follows:
“Defamation, that is dissemination, in a public
statement, publicly exhibited work of art or in mass media, of
knowingly false information discrediting the honour and dignity of a
person or damaging his or her reputation –
is punishable by a fine in the amount of one hundred to
five hundred conditional financial units, or by community service for
a term of up to two hundred and forty hours, or by corrective labour
for a term of up to one year, or by imprisonment for a term of up to
six months.”
- Article
148 of the Criminal Code provided as follows:
“Insult, that is deliberate humiliation of the
honour and dignity of a person, expressed in an obscene manner in a
public statement, publicly exhibited work of art or in mass media –
is punishable by a fine in the amount of three hundred
to one thousand conditional financial units, or by community work for
a term of up to two hundred and forty hours, or by corrective labour
for a term of up to one year, or by imprisonment for a term of up to
six months.”
- According
to Article 81 of the Criminal Code, persons convicted of a criminal
offence may be exempted from serving their sentence by an amnesty
act. According to Article 83.1, a convicted person retains a criminal
record until his or her conviction is removed or expunged. According
to Article 83.2, the conviction of a person dispensed from serving
his sentence is considered to be expunged.
- The
Milli Mejlis (Parliament) Resolution on Amnesty in Connection
with the Anniversary of the Victory over Fascism in World War II,
dated 6 May 2003, exempted a large number of convicts (with a
number of exceptions) from serving their sentences or the remainder
of their sentences. The amnesty applied to persons who had committed
a criminal offence prior to the entry into force of the Resolution.
Section 2.3 of the Resolution provided as follows:
“Persons sentenced, for deliberate commission of a
criminal offence, to imprisonment for a term of no more than three
years shall be dispensed from serving their sentences.”
- Article
10 of the Law on Mass Media of 7 December 1999 prohibits the mass
media from, inter alia, publishing defamatory material.
According to Article 60, editors of mass media sources and
journalists may be held liable criminally, administratively or
otherwise, if, inter alia, an editor fails to ensure the
compliance of the published material with the requirements of this
Law, or if the published material interferes with an individual's
private life.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION
- The
applicants complained under Articles 6 and 10 of the Convention that
their conviction following the publication of a newspaper article had
not been fair and had amounted to unjustified interference with their
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, 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.”
A. Admissibility
- 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.
B. Merits
1. The parties' submissions
- The
Government submitted that the interference was unquestionably
“prescribed by law” and pursued a legitimate aim of
protecting the reputation and rights of others. They further
submitted that the interference was “necessary in a democratic
society”.
- The
Government disagreed with the applicants' contention that the aim of
the article was to merely attract the public's attention to the
problematic situation in the agrarian sphere. The Government argued
that, by making false statements concerning J.A., placing his picture
in the article and using offensive and provocative language both in
the article and its title, the applicants had not acted in good
faith. By doing so, they had clearly linked J.A., who was a Member of
Parliament and of the Academy of Sciences, to the “grain
mafia”. Therefore, the applicants' purpose was not to raise a
public debate but to undermine J.A.'s reputation.
- The
Government further argued that the article contained no value
judgments and made untrue factual statements such as the statement
that certain “experimental” grain fields had belonged to
J.A. These statements were based on rumours, which the applicants had
not verified by independent research. Instead, they merely argued
before the courts that these facts were well-known and did not
require proof.
- As
to the proportionality of the interference, the Government submitted
that the sanctions imposed on the applicants were proportionate in
their nature to the legitimate aim pursued. Specifically, although
each of the applicants had been sentenced to a sentence of five
months' imprisonment, they had been exempted from serving their
prison terms pursuant to an amnesty act.
- The
applicants reiterated their complaint without submitting any further
observations on the merits of the case.
2. The Court's assessment
(a) Whether there was interference
- The
Court considers, and it was not disputed by the parties, that the
applicants' 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 amounted to
“interference” with their right to freedom of expression.
- Such
interference will infringe the Convention if it does not satisfy the
requirements of paragraph 2 of Article 10. It should therefore be
determined whether it was “prescribed by law”, whether it
pursued one or more of the legitimate aims set out in that paragraph
and whether it was “necessary in a democratic society” in
order to achieve those aims.
(b) Whether the interference was justified
- The
Court considers that the applicants' conviction was indisputably
based on Articles 147.1 and 148 of the Criminal Code and that it was
designed to protect “the reputation or rights of others”,
namely J.A. The interference was accordingly “prescribed by
law” and had a legitimate aim under Article 10 § 2 of the
Convention. Consequently, the Court's remaining task is to
determine whether the interference was “necessary in a
democratic society”.
(i) General principles
- As
a matter of general principle, the “necessity” for any
restriction on freedom of expression must be convincingly
established. Admittedly, it is in the first place for the national
authorities to assess whether there is a “pressing social need”
for the restriction and, in making their assessment, they enjoy a
certain margin of appreciation. In cases, such as the present one,
concerning the press, the national margin of appreciation is
circumscribed by the interest of the democratic society in ensuring
and maintaining a free press. Similarly, that interest will weigh
heavily in the balance in determining, as must be done under
paragraph 2 of Article 10, whether the restriction was proportionate
to the legitimate aim pursued (see Fressoz and Roire v. France
[GC], no. 29183/95, § 45, ECHR 1999 I).
- The
Court's task in exercising its supervisory function is not to take
the place of the competent domestic courts but rather to review under
Article 10 the decisions they have taken pursuant to their power of
appreciation. This does not mean that the supervision is limited to
ascertaining whether the respondent State exercised its discretion
reasonably, carefully or in good faith; what the Court has to do is
to look at the interference complained of in the light of the case as
a whole, including the content of the comments held against the
applicants and the context in which they made them (see Cumpǎnǎ
and Mazǎre v. Romania [GC], no. 33348/96, § 89,
ECHR 2004 XI).
- In
particular, the Court must determine whether the reasons adduced by
the national authorities to justify the interference were “relevant
and sufficient” and whether the measure taken was
“proportionate to the legitimate aims pursued”. In doing
so, the Court has to satisfy itself that the national authorities,
basing themselves on an acceptable assessment of the relevant facts,
applied standards which were in conformity with the principles
embodied in Article 10 (see, among many other authorities, Chauvy
and Others v. France, no. 64915/01, § 70, ECHR 2004-VI).
(ii) Application of the above principles
in the present case
(α) “Pressing social need”
- In
the present case, the domestic courts found that the article in issue
tarnished J.A.'s honour, dignity and public image by linking him with
a “mafia” and accusing him of exercising illegal control
over state-owned “experimental” grain fields (see
paragraph 12 above). The Court must determine whether the reasons
given by the national authorities to justify the applicants'
conviction were relevant and sufficient.
- One
factor of particular importance for the Court's determination of the
present case is the vital role of “public watchdog” which
the press performs in a democratic society (see Goodwin v. the
United Kingdom, 27 March 1996, § 39, Reports of
Judgments and Decisions 1996 II). Although it must not
overstep certain bounds, in particular in respect of the reputation
and rights of others, its duty is nevertheless to impart – in a
manner consistent with its obligations and responsibilities –
information and ideas on political issues and on other matters of
general interest (see, among many other authorities, De Haes and
Gijsels v. Belgium, 24 February 1997, § 37, Reports
1997-I, and Colombani and Others v. France, no. 51279/99,
§ 55, ECHR 2002-V).
- It
should be noted that, in general, the article discussed a number of
issues concerning the current problems in the agricultural sector. As
such, the subject matter of the article constituted a matter of
general interest which the applicants were entitled to bring to the
public's attention through the press.
- On the other hand, the article also contained
assertions relating directly to J.A., whose full name was mentioned
once in the article and whose picture accompanied it. The article
also made an indirect reference to J.A. by the phrase “the
certain known person”. It is sufficiently clear from the
article's context that the latter phrase also referred to J.A. In
view of the fact that J.A. was a prominent politician and scientist,
the Court reiterates that the limits of acceptable criticism are
wider as regards a public figure, such as a politician, than as
regards a private individual. Unlike the latter, the former
inevitably and knowingly lays himself open to close scrutiny of his
words and deeds by journalists and the public at large, and he must
consequently display a greater degree of tolerance (see Lingens v.
Austria, 8 July 1986, § 42, Series A no. 103).
- The
Court observes that the scope of the domestic courts' examination
extended not to the publication in its entirety but only to its title
and parts which either directly or indirectly referred to J.A. (see
paragraph 9 above). The courts concluded that the following two
phrases contained false information and were therefore defamatory and
insulting: the word “mafia” used both in the title and in
the text of the article, which allegedly implied that J.A. had a link
with this “mafia”; and the phrase “the local
executive authorities either prevented the major grain-buyers from
Baku from entering these regions or forced them to buy grain from the
specified fields... for a simple reason – in order to sell, in
a timely manner, all the grain from the thousands of hectares of
[J.A.'s] 'experimental' fields in these regions”.
- The
Court has consistently held that, in assessing whether there was a
“pressing social need” capable of justifying interference
with the exercise of freedom of expression, a careful distinction
needs to be made between facts and value judgments. The existence of
facts can be demonstrated, whereas the truth of value judgments is
not susceptible to proof. The requirement to prove the truth of a
value judgment is impossible to fulfil and infringes freedom of
opinion itself, which is a fundamental part of the right secured by
Article 10 (see De Haes and Gijsels, cited above, § 42,
and Lingens, cited above, § 46). However, where
allegations are made about the conduct of a third party, it may
sometimes be difficult to distinguish between assertions of fact and
value judgments. Nevertheless, even a value judgment may be excessive
if it has no factual basis to support it (see Jerusalem v.
Austria, no. 26958/95, § 43, ECHR 2001-II).
- Turning
to the circumstances of the present case, the Court observes that the
domestic courts inter alia found the use of the word “mafia”
defamatory since, in their view, no such thing actually existed in
Azerbaijan. Thus, without examining the question whether it could be
considered to be a value judgment, the courts concluded that it was
“deliberately false information”, within the meaning of
Article 147.1 of the Criminal Code, which the applicants had been
unable to prove. The Court considers, however, that the expressions
“mafia” and “agrarian mafia” do not appear to
have been used directly in reference to J.A. In the present case,
bearing in mind that journalistic freedom covers possible recourse to
a degree of exaggeration, or even provocation (see De Haes and
Gijsels, cited above, § 46), these expressions may have
amounted to an opinion, albeit expressed provocatively, as they
represented the applicants' subjective assessment of the whole set of
the allegedly corrupt government practices in the management of
agriculture as described throughout the entire article which, as
noted above, discussed a number of current problems in the
agricultural sector and was not limited only to discussion of J.A.'s
activities. As such, in the context of the newspaper article in
question, the word “mafia” could arguably be considered
as a value judgment rather than a statement of fact. However, in the
circumstances of the present case the Court does not find it
necessary to make a definitive assessment in this respect, as the
determination of this issue is not decisive in the light of the
following.
- The
Court observes that the article also contained the phrase ending with
“... in order to sell, in a timely manner, all the grain from
the thousands of hectares of [J.A.'s] 'experimental' fields in these
regions”, which the domestic courts found to be a false
statement as it had not been proven. The Court likewise considers
that this phrase was a statement of fact. Having regard to the
allusive style in which the article was written, the Court considers
that this statement must be examined in the light of the other
imputations contained in the article, including the accompanying
picture of J.A. and references to people who “control ... the
agricultural sector” which is “plundered as if it were in
the private ownership of the certain known person”, and “a
group ... who have monopolised this sphere”. These imputations,
in essence, contained allegations of specific conduct on J.A.'s part,
namely that he had been somehow complicit in illegally monopolising
the grain industry. The applicants' assertions suggested to readers
that J.A. somehow exercised control over “thousands of
hectares” of state-owned agricultural lands as if they were in
his private ownership and that the local executive authorities of
certain regions forced the grain buyers to buy grain from J.A.'s
fields, thus engaging in monopolistic activity which hurt individual
farmers.
- In
this connection, the Court reiterates that the exercise of freedom of
expression carries with it duties and responsibilities, and the
safeguard afforded by Article 10 to journalists is subject to the
condition that they are acting in good faith in order to provide
accurate and reliable information in accordance with the ethics of
journalism (see, among other authorities, Radio France and Others
v. France, no. 53984/00, § 37, ECHR 2004-II, and Colombani
and Others, cited above, § 65). In so far as the assertions
mentioned in the above paragraph are concerned, it does not appear
that the above condition has been met. Before the domestic courts,
the applicants refused to provide any evidence in support of their
assertions, arguing that it was a generally known fact which did not
require proof. They have neither submitted any evidence showing that
it was a generally known fact, nor have they shown that they had
conducted any kind of independent research to provide them with a
factual basis for their assertions. They have not done so before the
Court either.
- While
the role of the press certainly entails a duty to alert the public
where it is informed about presumed misappropriation on the part of
local elected representatives and public officials, the fact of
directly accusing specific individuals by mentioning their names and
positions placed the applicants under an obligation to provide a
sufficient factual basis for their assertions (see Cumpǎnǎ
and Mazǎre, cited above, § 101, and Lešník
v. Slovakia, no.
35640/97, § 57 in fine, ECHR 2003-IV). It appears that,
by asserting without a sufficient factual basis that J.A. had
exercised control over thousands of hectares of state-owned
agricultural land, the applicants failed to act in good faith and in
accordance with the ethics of journalism.
- Having
regard to the above, the Court considers that the reasons given by
the domestic courts to justify the interference were relevant and
sufficient. The Court therefore finds that, in the circumstances of
the present case, the domestic authorities were entitled to consider
it necessary to restrict the exercise of the applicants' right to
freedom of expression and that, accordingly, the applicants'
conviction for insult and defamation met a “pressing social
need”.
- It
remains to be determined, however, whether the interference was
“proportionate to the legitimate aim pursued”.
(β) Proportionality of the sanction
- The
Court reiterates that the nature and severity of the penalties
imposed are factors to be taken into account when assessing the
proportionality of an interference with the freedom of expression
guaranteed by Article 10 (see, among other authorities, Ceylan v.
Turkey [GC], no. 23556/94, § 37, ECHR 1999-IV, and
Skałka v. Poland,
no. 43425/98, §§ 41-42, 27 May 2003). The
Court must also exercise the utmost caution where the measures taken
or sanctions imposed by the national authorities are such as to
dissuade the press from taking part in the discussion of matters of
legitimate public concern (see Cumpǎnǎ and Mazǎre,
cited above, § 111).
- Although the Contracting States are permitted, or even
obliged, by their positive obligations under Article 8 of the
Convention to regulate the exercise of freedom of expression so as to
ensure adequate protection by law of individuals' reputations (see
Pfeifer v. Austria,
no. 12556/03, § 35, ECHR 2007 ...; Chauvy and
Others, cited above, § 37 in fine; Von Hannover v.
Germany, no. 59320/00, § 57, ECHR 2004 VI), they must
not do so in a manner that unduly deters the media from fulfilling
their role of alerting the public to apparent or suspected misuse of
public power (see paragraph 37 above). Investigative journalists are
liable to be inhibited from reporting on matters of general public
interest if they run the risk, as one of the standard sanctions
imposable for unjustified attacks on the reputation of private
individuals, of being sentenced to imprisonment. A fear of such a
sanction inevitably has a chilling effect on the exercise of
journalistic freedom of expression (see Cumpǎnǎ and
Mazǎre, cited above, §§ 113-14).
- In
the instant case, each applicant was sentenced to five months'
imprisonment. This sanction was undoubtedly very severe, especially
considering that lighter alternatives were available under the
domestic law. The Court reiterates that, although sentencing is in
principle a matter for the national courts, the imposition of a
prison sentence for a press offence will be compatible with
journalists' freedom of expression as guaranteed by Article 10
of the Convention only in exceptional circumstances, notably where
other fundamental rights have been seriously impaired, as, for
example, in cases of hate speech or incitement to violence (ibid., §
115).
- The
Court considers that the circumstances of the instant case present no
justification for the imposition of a prison sentence. Such a
sanction, by its very nature, has a chilling effect on the exercise
of journalistic freedom. The fact that the applicants did not serve
their prison sentence and that their convictions were expunged, does
not alter that conclusion, seeing that they were exempted from
serving their sentence only owing to a fortunate coincidence of an
amnesty act which happened to apply to a wide variety of criminal
cases at the relevant period of time and which was not adopted with a
specific aim of redressing the applicants' particular situation.
- It
therefore follows that, by sentencing the applicants to imprisonment,
the domestic courts contravened the principle that the press must be
able to perform the role of a public watchdog in a democratic
society.
(γ) Conclusion
- The
Court concludes that, although interference with the applicants'
right to freedom of expression may have been justified, the criminal
sanction imposed was disproportionate to the legitimate aim pursued
by the applicants' conviction for insult and 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.
- There
has accordingly been a violation of Article 10 of the Convention.
II. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- 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.”
A. Damage
1. Pecuniary damage
- The
applicants claimed 17,291 euros (EUR) in respect of pecuniary damage.
They argued that, due to their conviction, their newspaper's
reputation had been damaged. This allegedly resulted in a decrease in
sales and loss of revenues from advertisement.
- The
Government contested this claim.
- The
Court does not discern any causal link between the violation found
and the pecuniary damage alleged. It therefore rejects this claim.
2. Non-pecuniary damage
- Each
applicant claimed EUR 50,000 in respect of non-pecuniary damage.
- The
Government argued that the amounts claimed were unjustified.
- Making
an assessment on an equitable basis as required by Article 41 of
the Convention, the Court awards the applicants, collectively,
EUR 1,000 as compensation for non-pecuniary damage, plus any tax
that may be chargeable.
B. Costs and expenses
- The
applicants also claimed EUR 925 for the costs and expenses incurred
before the Court.
- The
Government contested this claim.
- 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
awards the applicants, collectively, the sum of EUR 925 for the
proceedings before the Court.
C. Default interest
- 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 the applicants jointly, within three
months from the date on which the judgment becomes final in
accordance with Article 44 § 2 of the Convention, EUR 1,000 (one
thousand euros) in respect of non-pecuniary damage and EUR 925 (nine
hundred and twenty-five euros) in respect of costs and expenses, plus
any tax that may be chargeable to the applicants, to be converted
into New Azerbaijani manats at the rate applicable at the date of
settlement;
(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 applicants' claim
for just satisfaction.
Done in English, and notified in writing on 18 December 2008,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Christos Rozakis
Registrar President
