The European Court of Human Rights has found that the criminal conviction of Khadija Ismayilova, a renowned Azeri journalist and civil society activist, was baseless, unfair, and a violation of her right to freedom of expression. The Court has held that by bringing criminal charges against her, the Azeri authorities violated Articles 6, 7, 10, and 18 of the Convention.
Khadija Ismayilova is known for her investigative reporting on corruption. In 2015, she was convicted for an array of ostensibly non-speech offences and sentenced to 7 and a half years in prison. In May 2016, the Supreme Court of Azerbaijan upheld her conviction for “illegal entrepreneurship” and “tax evasion”, while quashing the rest of it. It reduced the penalty to 3-and-half years of suspended prison sentence.
The European Court has stressed the Azeri courts’ failure to address the compelling well-founded objections to the charges of illegal entrepreneurship and tax evasion that Ms Ismayilova raised during the trial. It has found the journalist’s conviction was fundamentally flawed and marked by arbitrariness and, thus, incompatible with the fair trial guarantees of Article 6 of the Convention. It has also found that the part of the conviction that related to ‘illegal entrepreneurship’ lacked basis in Azeri law, thus resulting in a rare finding of a violation of Article 7 of the Convention which guarantees that only the law can define a crime and prescribe a criminal penalty. Ms Ismayilova was convicted on this charge because she had worked as a freelance journalist, including for a foreign radio station, without being accredited with the Ministry of Foreign Affairs. The Azeri law, however, provided no basis for treating accreditation as a requirement for journalists to lawfully work for foreign media organisations.
Importantly, the European Court has agreed with the journalist that her conviction, although formally unconnected to anything she had published as a journalist, was a violation of her right to freedom of expression under Article 10 of the Convention. The Court considered the pattern of harassment and abuse that Ms Ismayilova had been subjected to in state-controlled media as well as the overall hostile climate for independent journalists and critics of the government. Having established prima facie evidence that the applicant’s conviction was a retribution her journalistic work, the Court found that the Azeri authorities failed to provide evidence to the contrary. The Court concluded that the violation of Ms Ismayilova’s freedom of expression was “not only unlawful but also grossly arbitrary and incompatible with the principle of the rule of law”. For similar reasons, the Court also found a violation of Article 18 of the Convention which prohibits the imposition of restrictions on the rights guaranteed in the Convention for purposes other than they are designed for.
Padraig Hughes, Legal Director of Media Defence, who represented Ms Ismayilova stated “The Court’s findings on Articles 10 and 18 are significant because they unmask Azerbaijan’s strategy of prosecuting critical journalists on trumped-up charges that are ostensibly unrelated to anything the journalist has published. The Court has recognised that Khadija’s trial was a sham, and its sole purpose was to punish her for her reporting that exposed corruption among Azeri officials.”
Read the full judgment here.
For press inquiries please contact Media Defence Legal Director Pádraig Hughes at: padraig.hughes@mediadefence.org
