On 10 January 2018, the European Court of Human Rights (ECtHR) ruled that the Republic of Azerbaijan violated Articles 8 and 10 of the European Convention on Human Rights (ECHR) by failing to adequately investigate claims by an Azerbaijani journalist that she had been the victim of political blackmail. The ECtHR’s ruling follows upon reports of rising concern in the Council of Europe about government mistreatment of journalists across Europe, and in Azerbaijan in particular.
In 2010, Khadija Ismayilova, a well-known Azerbaijani investigative journalist, began reporting on the financial dealings of the Azerbaijani President and his family. In a series of stories, Ismayilova reported among other things that a mining consortium controlled by the President’s family had been the beneficiary of a lucrative extraction license from the Azerbaijani government.
On 7 March 2012, Ismayilova received a letter from a Moscow address containing a series of still images of her and her then-boyfriend engaged in sexual activity. It was later discovered that these images had been taken by a camera secretly installed in her apartment. Also enclosed in the letter was the following message: “Whore, refrain from what you are doing, otherwise you will be shamed!”
One week later, a video depicting Ismayilova engaged in sexual acts was posted online. On 15 March 2012, the day following the release of this video, a formal investigation was opened at Ismayilova’s behest by the Prosecutor General’s Office, which in turn assigned the case to the Baku City Prosecutor. On 4 April 2012, Ismayilova published a press release voicing her concerns about the adequacy of the ensuing investigation.
In response to this press release, the Prosecutor General’s Office and the Baku City Prosecutor jointly released a 26 April 2012 status report. In the course of detailing the investigative steps taken, the report disclosed a large quantity of personal information about Ismayilova and her associates. This information included the identities of individuals to whom Ismayilova had sublet her apartment and the financial details of those arrangements, as well as the names and professional occupations of the man who appeared with Ismayilova in the video, members of Ismayilova’s family, and several of her colleagues. According to Ismayilova, she had been promised this information would remain confidential when she provided it to investigators.
In the weeks and months following the posting of the video and Ismayilova’s receipt of the letter, newspapers with ties to the ruling New Azerbaijan Party published several articles critical of Ismayilova’s supposed anti-government bias and immoral sexual behavior. Then, in July 2013, a second video of Ismayilova engaged in sexual activity—again taken with a hidden camera—was posted to the internet. No suspect was ever identified in the investigation into who had posted either video or who had sent the original 7 March 2012 letter.
Beginning in August 2013, Ismayilova filed a series of suits in Azerbaijani court, each alleging various inadequacies in the investigation by the Prosecutor General’s Office and the Baku City Prosecutor. All of these claims were rejected by the examining courts on the ground that they were without competence to review prosecutorial inactivity.
On 26 September 2013 and 31 July 2014, Ismayilova filed applications to the ECtHR, alleging, inter alia, violations of Articles 8 and 10 of the ECHR.
The ECtHR ruled that the Azerbaijani government had violated Articles 8 and 10 by failing to effectively investigate Ismayilova’s case and by publishing without adequate justification personal information about Ismayilova and her associates.
In reaching this result, the ECtHR found:
- Articles 8 and 10 protect individuals’ rights to respect for private and family life and freedom of expression. While these Articles primarily impose a “negative” obligation on states not to interfere with these rights, they in certain circumstances also impose a “positive” obligation on states to secure to individuals respect for those values from even non-state actors.
- The covert filming of Ismayilova’s sexual activity, within the confines of her own home, indisputably amounted to an intrusion into her private life and the letter blackmailing her plainly constituted an effort to suppress her freedom of expression.
- While credible, the evidence was insufficient to show beyond reasonable doubt that these actions should be attributed to the Azerbaijani government. The ECtHR thus rejected Isamyilova’s claim that the Azerbaijani government had violated its negative obligations under Articles 8 and 10.
- However, in the circumstances of this case—where there was a plausible link between a well-known journalist’s political reporting and an extremely invasive intrusion into her private life—the state’s positive obligations under Articles 8 and 10 required it to conduct a criminal investigation devoid of “serious flaws.”
- The investigation in this case was unreasonably dilatory and beset by serious flaws—e.g., a failure to track down relevant leads, interview key witnesses, and produce to the ECtHR relevant investigative files.
- Furthermore, the 26 April 2012 investigation status report disclosing personal information on Ismayilova and her romantic partners, family members, and colleagues was an unlawful and unjustified interference with her Article 8 and 10 rights.
In light of these violations, the ECtHR ultimately awarded Ismayilova EUR 15,000 in non-pecuniary damages and EUR 1,750 for costs and expenses.