first section - Reporter ohne Grenzen

Communicated on 26 August 2015
FIRST SECTION
Application no. 30778/15
Khadija Rovshan Gizi ISMAYILOVA
against Azerbaijan
lodged on 8 June 2015
STATEMENT OF FACTS
The applicant, Ms Khadija Ismayilova, is an Azerbaijani national, who
was born in 1976 and lives in Baku. She is represented before the Court by
Mr N. Jansen and Mr F. Namazli, lawyers practising, respectively, in
London and Azerbaijan.
The facts of the case, as submitted by the applicant, may be summarised
as follows.
A. Background
The applicant is a well-known investigative journalist and civil society
activist. She works as a journalist for the Azerbaijani service of Radio Free
Europe/Radio Liberty. She also worked as the director of the Azerbaijani
service of Radio Free Europe/Radio Liberty from 1 July 2008 to 1 October
2010.
She is a strong critic of the Government and was involved in numerous
journalistic investigations relating to the alleged corruption cases and
business activities of the family of the President of the Republic.
She was awarded the Press Prize for Russia and Eastern Europe 2012 for
her journalistic activity by the Norwegian Fritt Ord Foundation and the
German ZEIT Foundation. She was also awarded the International
Women’s Media Foundation’s “Courage in Journalism” Award in 2012.
According to the applicant, she was constantly threatened because of her
journalistic activities. In particular, in 2012 her intimate
video-recording -unlawfully filmed by a camera hidden in her bedroom-was
disclosed in order to blackmail and silence her as a journalist. A
government-led campaign against her was launched and she was constantly
harassed in the State media and in the media allegedly close to the
Government. The applicant was unlawfully prevented on several occasions
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ISMAYILOVA v. AZERBAIJAN – STATEMENT OF FACTS AND QUESTIONS
from leaving Azerbaijan to participate in various international events. On
3 December 2014 the Head of the Presidential Administration accused her
of treason noting that she is “the best example of journalists working against
the Government”.
B. Institution of criminal proceedings against the applicant and her
remand in custody
On 20 October 2014 a former colleague (T.M.) of the applicant
attempted suicide.
On 24 October 2014 the Prosecutor General’s Office instituted criminal
proceedings under Article 125 (incitement to suicide) of the Criminal Code.
On 5 December 2014 the applicant was questioned at the Prosecutor
General’s Office in the presence of her lawyer and T.M. According to the
applicant, she stated that she had not incited T.M. to commit suicide and
that she had had no contact with him since 9 March 2014. Following the
questioning, the applicant was officially charged with the criminal offence
of incitement to suicide under Article 125 of the Criminal Code. In this
connection, the investigator noted that when the applicant, who had had a
relation with T.M., learned on 8 March 2014 that T.M. had a relation with
another woman, she had humiliated him and managed to get him fired
which led T.D. to commit suicide.
On the same day a judge of the Sabail District Court, relying on the
formal charges brought against the applicant and the prosecutor’s request to
apply the preventive measure of remand in custody (həbs qətimkan tədbiri),
remanded the applicant in custody for a period of two months. The judge
substantiated the necessity of this measure by the gravity of the charges and
the likelihood of the applicant absconding from and obstructing the
investigation.
On an unspecified date the applicant appealed against this decision. She
complained that there was no reasonable suspicion that she had committed a
criminal offence and that there was no justification for the application of the
preventive measure of remand in custody.
On 11 December 2014 the Baku Court of Appeal dismissed the
applicant’s appeal, finding that the detention order was justified.
C. Statement of 6 December 2014 by the Prosecutor General’s Office
published in the media
On 6 December 2014 the Prosecutor General’s Office made a public
statement entitled “Illegal acts of Khadija Ismayilova were exposed”
(“Xədicə İsmayılovanın qanunazidd əməlləri ifşa edilib”) published in the
media. The statement officially informed the public of the institution of
criminal proceedings against the applicant under Article 125 of the Criminal
Code.
ISMAYILOVA v. AZERBAIJAN – STATEMENT OF FACTS AND QUESTIONS
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D. Public reaction to the applicant’s arrest and criminal proceedings
against her
The applicant’s arrest and institution of criminal proceedings against her
attracted significant public and media interest both inside the country and
internationally.
Immediately after the applicant’s arrest, a number of domestic NGOs, as
well as international NGOs such as Amnesty International, Committee to
Protect Journalists and Human Rights Watch, condemned the authorities’
actions. Human Rights Watch assessed the applicant’s arrest as “the latest
move in the Government’s systematic crackdown on independent voices”.
On 5 December 2014 Dunja Mijatovic, OSCE Representative on
Freedom of the Media, condemned the arrest of the applicant noting that
“the arrest of Ismayilova is nothing but orchestrated intimidation, which is a
part of the ongoing campaign aimed at silencing her free and critical voice”.
On 9 December 2014 Thorbjørn Jagland, the Secretary General of the
Council of Europe, made the following official statement calling for the
applicant’s immediate release:
“I am concerned that a Baku court ordered the two-month pre-trial detention of
prominent Azerbaijani investigative journalist Khadija Ismayilova.
Her arrest was unnecessary. It sends a very negative message to the civil society in
Azerbaijan and to the international community.
It once again puts pressure on journalists and human rights defenders in Azerbaijan
and fundamentally contradicts the commitments Azerbaijan undertook when it
became a member State of the Council of Europe.
I call for the immediate release of Khadija Ismayilova and of the many other
Azerbaijani partners of the Council of Europe currently deprived of their liberty.”
E. Extension of the applicant’s pre-trial detention and further
developments
On an unspecified date in December 2014 the applicant lodged a request
with the Sabail District Court asking for the replacement of her pre-trial
detention by house arrest or her release on bail. She claimed, in particular,
that there was no evidence that she had involved in any way in T.M.’s
attempted suicide and that her detention had not been justified. She further
noted that there was no reason for her continued detention as she had a
permanent place of residence and that there was no risk of her absconding
from or obstructing the investigation.
On 26 December 2014 the Sabail District Court dismissed the request,
finding that there was a risk of her absconding from and obstructing the
investigation.
On 30 December 2014 the Baku Court of Appeal upheld the Sabail
District Court’s decision of 26 December 2014.
Meanwhile, on 27 December 2014 T.M. announced his intention to
withdraw his complaint against the applicant. Following this statement,
T.M. was arrested by the police. The basis for his arrest and detention was
not clear.
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ISMAYILOVA v. AZERBAIJAN – STATEMENT OF FACTS AND QUESTIONS
On 26 January 2015 the prosecutor lodged a request with the court
asking for an extension of the applicant’s pre-trial detention by two months,
noting that more time was needed to complete the investigation.
On 27 January 2015 the Sabail District Court extended the applicant’s
pre-trial detention until 24 March 2015. As justification for the extension of
the detention period, the court relied on the gravity of the charges and the
likelihood that, if released, she would abscond from and obstruct the
investigation.
On an unspecified date the applicant appealed against this decision,
claiming that the court had failed to substantiate the extension of her
detention and that there was no reason to hold her in detention.
On 6 February 2015 the Baku Court of Appeal upheld the Sabail District
Court’s decision of 27 January 2015.
On 13 February 2015 the applicant was charged with new criminal
offences under Articles 179.3.2 (large-scale misappropriation), 192.2.2
(illegal entrepreneurship), 213.1 (large-scale tax evasion) and 308.2 (abuse
of power) of the Criminal Code. The charges against the applicant
concerned her activity as the director of the Azerbaijani service of Radio
Free Europe/Radio Liberty during the period from 1 July 2008 to 1 October
2010.
On 27 February 2015 the investigator decided to join the two criminal
proceedings against the applicant in the same criminal proceedings.
On 6 March 2015 the Nasimi District Court extended the applicant’s
pre-trial detention until 24 May 2015. The judge substantiated the necessity
of this extension on the grounds of the complexity of the case and the fact
that a number of investigative steps needed to be carried out and thus more
time was needed to complete the investigation.
On an unspecified date the applicant appealed against this decision,
claiming that the first-instance court had failed to justify the extension of
her pre-trial detention. She also complained that there was no evidence that
she had committed any criminal offence and that the lower court had only
relied on the prosecutor’s submissions when it had ordered the extension of
her detention.
On 12 March 2015 the Baku Court of Appeal dismissed the appeal and
upheld the first-instance court’s decision.
On 8 April 2015 T.M. stated in an interview with Radio Free
Europe/Radio Liberty that he had withdrawn his complaint against the
applicant. He further noted that the applicant had no link with his attempted
suicide and that he was suffering from psychological problems at that time.
He also pointed out that he had been previously unable to withdraw his
complaint as a result of certain reasons that he wished not to further
elaborate on.
On 14 May 2015 the Nasimi District Court extended the applicant’s
pre-trial detention until 24 August 2015. The decision was identical in its
wording to the Nasimi District Court’s decision of 6 March 2015.
On 21 May 2015 the Baku Court of Appeal dismissed the applicant’s
appeal against the Nasimi District Court’s decision of 14 May 2015, but
decided to extend her pre-trial detention until 22 August 2015.
ISMAYILOVA v. AZERBAIJAN – STATEMENT OF FACTS AND QUESTIONS
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In the meantime, on an unspecified date, the applicant lodged a request
with the Nasimi District Court asking for the replacement of her pre-trial
detention by house arrest or her release on bail.
On 15 May 2015 the Nasimi District Court dismissed the request, finding
that there was no reason for changing the preventive measure applied in
respect of the applicant.
On 21 May 2015 the Baku Court of Appeal upheld the Nasimi District
Court’s decision of 15 May 2015.
COMPLAINTS
1. The applicant complains under Article 5 of the Convention that her
arrest and detention were unlawful because there was no reasonable
suspicion that she had committed a criminal offence.
2. Relying on Articles 5 and 6 of the Convention she complains that the
domestic courts failed to justify the application of the preventive measure of
remand in custody in her respect, that there were no relevant and sufficient
reasons for her continued pre-trial detention, and that the domestic courts’
decisions ordering her detention were not reasoned.
3. Relying on Articles 5 and 6 of the Convention, the applicant
complains that the domestic courts failed to conduct an effective review of
the lawfulness of her detention because they did not address her specific
arguments in support of her release and that they were not independent and
impartial.
4. The applicant complains under Article 6 § 2 of the Convention that
the statement made by the Prosecutor General’s Office to the press dated
6 December 2014 amounted to an infringement of her right to the
presumption of innocence.
5. Relying on Articles 10 and 18 of the Convention, the applicant
complains that her freedom of expression was violated and her Convention
rights were restricted for purposes other than those prescribed in the
Convention. In particular, she argues that her arrest and pre-trial detention
were intended to silence her as an investigative journalist and civil society
activist.
QUESTIONS TO THE PARTIES
1. Was the applicant deprived of her liberty in breach of Article 5 § 1 of
the Convention? In particular, was her detention compatible with Article 5
§ 1 (c) in terms of being justified and based on a reasonable suspicion?
2. Did the domestic courts give sufficient and relevant reasons for the
applicant’s detention for the purposes of Article 5 § 3 of the Convention?
Did they consider alternative measures to her continued detention?
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ISMAYILOVA v. AZERBAIJAN – STATEMENT OF FACTS AND QUESTIONS
3. Did the applicant have at her disposal an effective procedure by which
she could challenge the lawfulness of her detention, as required by Article 5
§ 4 of the Convention?
4. Was the presumption of innocence, guaranteed by Article 6 § 2 of the
Convention, respected in the present case? In particular, did the statement
made by the Prosecutor General’s Office to the press dated 6 December
2014 amount to an infringement of the applicant’s right to the presumption
of innocence?
5. Has there been an interference with the applicant’s freedom of
expression within the meaning of Article 10 § 1 of the Convention? If so,
was that interference prescribed by law and necessary in terms of Article 10
§ 2?
6. Were the restrictions imposed by the State in the present case,
purportedly pursuant to Article 5 of the Convention, applied for a purpose
other than those envisaged by that provision, contrary to Article 18 of the
Convention?
7. The parties are requested to submit copies of all documents (including
the records of the questioning, the applicant’s appeals against the domestic
courts’ decisions, the statement made by the Prosecutor General’s Office to
the press dated 6 December 2014, etc.) relating to the criminal proceedings
against the applicant and the proceedings concerning the applicant’s arrest
and pre-trial detention.

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