I just came across to imprisoned Azerbaijani journalist Eynulla Fatullayev’s case on the European Court for Human Rights website. Fatullayev was initially imprisoned for challenging Azerbaijan’s official version of the Khojalu massacre (by Armenians) during the Nagorno-Karabakh war in the 1990s. Below is the full facts as summarized by the court:
09 September 2008
FIRST SECTION
Application no. 40984/07
by Eynulla FATULLAYEV
against Azerbaijan
lodged on 10 September 2007
STATEMENT OF FACTS
THE FACTS
The applicant, Mr Eynulla Fatullayev, is an Azerbaijani national who was born in 1976 and lives in Baku. He is represented before the Court by Mr I. Ashurov, a lawyer practising in Baku.
The facts of the case, as submitted by the applicant, may be summarised as follows.
The applicant was the founder and chief editor of the newspapers Realny Azerbaijan (“Реальный Азербайджан”), published in the Russian language, and Gündəlik Azərbaycan, published in the Azerbaijani language. The newspapers were widely known for often publishing articles harshly criticising the Government and various public officials.
Prior to the events complained of in this application, on 26 September 2006 the applicant had already been convicted for defamation and conditionally sentenced to two years’ imprisonment. He had also been sued for defamation in a number of civil proceedings.
In 2007 two sets of criminal proceedings were brought against the applicant in connection with, inter alia, two articles published by him in Realny Azerbaijan.
A. “Karabakh Diary”
In 2005 the applicant visited, as a journalist, the area of Nagorno-Karabakh and other territories controlled by the Armenian forces. There he met with, among others, some officials of the self-proclaimed unrecognised “Nagorno-Karabakh Republic”. In the aftermath of this visit, in April 2005 the applicant published an article called “Karabakh Diary” (Russian: “Карабахский дневник”) in Realny Azerbaijan.
One of the topics discussed in “Karabakh Diary” concerned the Khojaly massacre of 26 February 1992. Discussing this topic, the applicant made certain statements which could be construed as differing from the commonly accepted version of the Khojaly events, according to which hundreds of Azerbaijani civilians had been killed by the Armenian armed forces during their assault on the town of Khojaly in the course of the war in Nagorno-Karabakh. Specifically, the article contained the following passages (translated from Russian):
“For the sake of fairness I will admit that several years ago I met the refugees from Khojaly, temporarily settled in Naftalan, who openly confessed to me that, on the eve of the large-scale offensive of the Russian and Armenian troops on Khojaly, the town had been encircled [by those troops]. And already several days prior to the attack, the Armenians had been continuously warning the population about the planned operation through loudspeakers and proposing that the civilians abandon the town and escape from the encirclement through a humanitarian corridor along the Kar-Kar River. According to the Khojaly refugees’ own words, they had used this corridor and, indeed, the Armenian soldiers positioned behind the corridor had not opened fire on them. Some soldiers from the battalions of the NFA [the National Front of Azerbaijan, a political party], for some reason, had led a part of the [refugees] in the direction of the village of Nakhichevanik, which during that period had been under control of the Armenians’ Askeran battalion. …
When I was in Askeran [in Nagorno Karabakh], I spoke to the deputy head of the administration of Askeran Slavik Arushanyan and compared his recollection of the events with that of the Khojaly inhabitants who came under fire from the Azerbaijani side. I asked S. Arushanyan to show me the corridor which the Khojaly inhabitants had used [to abandon the town]. Having familiarised myself with the geographical area, I can say, fully convinced, that the conjectures that there had been no Armenian corridor are groundless. The corridor indeed existed, otherwise the Khojaly inhabitants, fully surrounded [by the enemy troops] and isolated from the outside world, would not have been able to force their way out and escape the encirclement. However, having crossed the area behind the Kar-Kar River, the row of refugees was separated and, for some reason, a part of [them] headed in the direction of Nakhichevanik. It appears that the NFA battalions strived not for the liberation of the Khojaly civilians but for more bloodshed on their way to overthrow A. Mutalibov [the first President of Azerbaijan] …”
On 23 February 2007 Ms T. Chaladze, the Head of the Centre for Protection of Refugees and Displaced Persons, lodged a civil action against the applicant with the Yasamal District Court. She claimed that the applicant “has, for a long period of time, insulted the honour and dignity of the victims of the Khojaly Tragedy, persons killed during those tragic events and their relatives, as well as veterans of the Karabakh War, soldiers of the Azerbaijani National Army and the entire Azerbaijani people”. She alleged that that the applicant did so by making the above-mentioned statements in his article “Karabakh Diary” as well as by making, in 2006 and 2007, similar insulting statements on the interactive forum of the website called AzeriTriColor. These internet forum postings, the authorship of which Ms Chaladze attributed to the applicant, contained the following statements:
“I have visited this town [Naftalan] where I have spoken to hundreds (I repeat, hundreds) of refugees who insisted that there had been a corridor and that they had remained alive owing to this corridor … But a part of the Khojaly inhabitants had been fired upon by our own [troops] … not by [some] mysterious [shooters], but by provocateurs from the NFA battalions … [The corpses] had been mutilated by our own [soldiers] …”
In his submissions to the court, the applicant argued that the forum postings at the AzeriTriColor website had not been written by him and denied making these statements. He also argued that, in “Karabakh Diary”, he had merely written about the information given to him by persons that he had interviewed.
On 6 April 2007 the Yasamal District Court, presided by Judge I. Ismayilov, upheld Ms Chaladze’s claim and ordered the applicant to pay compensation in the amount of 20,000 New Azerbaijani manats (approximately 16,000 euros).
Thereafter, a group of former soldiers and other persons who had been involved in the Khojaly events, represented by Ms Chaladze, filed a criminal complaint against the applicant with the Yasamal District Court, under the procedure of private prosecution. They asked that the applicant be convicted for defamation and false accusation of Azerbaijani soldiers of having committed an especially grave crime.
At a preliminary hearing held on 9 April 2007, the applicant filed an objection against the entire composition of the Yasamal District Court. He claimed that all of the judges of this court had been appointed to their positions in September 2000 for a fixed five-year term and that their term of office had expired in 2005. He therefore argued that such a composition of the court could not be considered as a “tribunal established by law”. This objection was dismissed.
The hearing of the criminal case took place on 20 April 2007 and was presided over by Judge I. Ismayilov.
In his oral submissions to the court, the applicant pleaded his innocence. In particular, he denied making the statements on the forum of the AzeriTriColor website and maintained that those statements had been made by someone else who had used his name for this purpose.
The court heard a linguistic expert, who gave an opinion on the applicant’s statements, and a number of witnesses, who testified about the Khojaly events. The court also found that the internet forum of the AzeriTriColor website, in essence, replaced the internet forum of the Realny Azerbaijan website, which had become defunct in 2006, and that the statements posted on that forum under the screen name “Eynulla Fatullayev” had indeed been made by the applicant himself. Lastly, the court found that, through his statements made in “Karabakh Diary” and his internet forum postings, the applicant had given a heavily distorted account of the historical events in Khojaly and had deliberately disseminated false information which damaged the reputation of the plaintiffs and accused them of committing grave crimes which they had not committed. The court convicted the applicant under Articles 147.1 (defamation) and 147.2 (defamation by way of accusing a person of having committed a grave crime) of the Criminal Code and sentenced him to two years and six months’ imprisonment.
The applicant was arrested in the courtroom and taken to the Investigative Isolator No. 1 on the same day (20 April 2007). Until 23 April 2007, his lawyer was not allowed to visit him as he was required to obtain a court’s permission to do so.
On 6 June 2007 the Court of Appeal upheld the Yasamal District Court’s judgment of 20 April 2007.
On 21 August 2007 the Supreme Court dismissed the applicant’s cassation appeal and upheld the lower courts’ judgments.
B. “The Aliyevs Go to War”
In the meantime, on 30 March 2007, Realny Azerbaijan published an article called “The Aliyevs Go to War” (Russian: “Алиевы идут на войну”). The article was written by the applicant but published under the pseudonym “Rovshan Bagirov”. This analytical article was devoted to possible consequences of Azerbaijan’s support of a recent “anti-Iranian” resolution of the UN Security Council, which had called for economic sanctions against that country. The article referred to the current Azerbaijani government as “the Aliyev clan” and “the governing tribe” and expressed a view that the latter sought US support of President Ilham Aliyev’s “remaining in power” in Azerbaijan in exchange for Azerbaijan’s support of the US “aggression” against Iran.
The article continued as follows (translated from Russian):
“It is also known that, immediately after the UN [Security Council] had voted for this resolution, [the authorities] in Teheran began to seriously prepare for the beginning of the “anti-Iranian operation”. For several years, military headquarters of the Islamic regime had been developing plans for repulsing the American aggression and counter-striking the US and their allies in the region. After 24 March 2007 Azerbaijan, having openly supported the anti-Iranian operation, must prepare for a lengthy and dreadful war which will result in large-scale destruction and loss of human life. According to the information from the sources close to official Paris, the Iranian General Staff has already developed its military plans concerning Azerbaijan in case Baku takes part in the aggression against Iran. Thus, the Iranian long-range military air force, thousands of insane kamikaze terrorists from the IRGC [the Islamic Revolution’s Guardian Corps] and hundreds of Shahab-2 and Shahab-3 missiles will strike the following main targets on the territory of Azerbaijan …”
The article continued with a long and detailed list of such targets, which included, inter alia, active oil platforms on the shelf of the Caspian Sea, the Sangachal Oil Terminal and other oil plants and terminals, the Baku-Tbilisi-Ceyhan oil pipeline and the Baku-Tbilisi-Erzurum gas pipeline, the building of the Presidential Administration, the building of the US Embassy in Azerbaijan, buildings of various ministries, the Baku seaport and airport, a number of large business centres accommodating offices of major foreign companies doing business in Azerbaijan, etc.
Further, the article continued to elaborate on the issue of possible unrest, in case of a conflict with Iran, in the southern regions of Azerbaijan populated by the Talysh ethnic minority who are ethnically and linguistically close to the Persians. Among other things, the article appeared to imply that the current ruling elite, a large number of whom allegedly come from the region of Nakhchivan, engaged in regional nepotism by appointing people from Nakhchivan to government posts in southern areas of the country, including the Lenkoran region. In particular, the article stated:
“Thus, the Talysh have long been expressing their discontent with the fact that [the central authorities] always appoint to the administrative positions in Lenkoran persons hailing from Nakhchivan who are alien to the mentality and problems of the region. … The level of unemployment in the region is terribly high, drug abuse is flourishing, every morning hundreds of unemployed Talysh cluster together at the “slave” [that is, cheap labour] market in Baku. Is this not a powder keg?”
On 16 May 2007 the investigation department of the Ministry of National Security (“the MNS”) commenced a criminal investigation in connection with this publication under Article 214.1 of the Criminal Code (terrorism or threat of terrorism).
On 22 May 2007 the investigation authorities conducted searches in the applicant’s apartment and in the office of the Realny Azerbaijan and Gündəlik Azərbaycan newspapers. They found and seized certain photographs and computer discs from the applicant’s apartment and twenty computer hard drives from the newspaper’s office.
On 26 May 2007, pursuant to a decision of the Sabail District Court, the applicant was transferred to the MNS detention facility.
On 31 May 2007 the Chief Prosecutor made a statement to the press, noting that the article published in Realny Azerbaijan, founded by the applicant, contained information which constituted a threat of terrorism and that a criminal investigation had been instituted in this connection by the MNS.
On 3 July 2007, by a decision of an MNS investigator, the applicant was formally charged with committing the crimes of threat of terrorism (Article 214.1 of the Criminal Code) and inciting ethnic hostility (Article 283.2.2 of the Criminal Code).
On the same day, 3 July 2007, pursuant to a request by the Chief Prosecutor’s Office, the Sabail District Court ordered the applicant’s detention on remand for a period of three months in connection with this criminal case. The court’s decision reiterated the charges against the applicant and justified the necessity of the applicant’s detention as follows:
“Eynulla Emin oglu Fatullayev, if he remains at large, may escape the investigation and trial and hinder the determination of the objective truth in [this criminal] case.
Due to the above considerations, the prosecutor’s request to select the preventive measure of detention on remand in respect of Eynulla Emin oglu Fatullayev is well-founded and must be granted.”
The applicant appealed. On 11 July 2007 the Court of Appeal upheld the Sabail District Court’s decision.
On 4 September 2007 the applicant was also charged with tax evasion under Article 213.2 of the Criminal Code due to the alleged failure to duly declare taxes on his personal earnings as a newspaper editor.
During the trial, among other evidence, the prosecution produced evidence showing that in May 2007 the full electronic version of “The Aliyevs Go to War” had been forwarded by e-mail to offices of a number of foreign and local companies in Baku. A number of employees of these companies testified that, after reading the article, they had felt disturbed, anxious and frightened. On 30 October 2007 the Assize Court found the applicant guilty on all charges and convicted him of threat of terrorism (eight years’ imprisonment), inciting ethnic hostility (three years’ imprisonment) and tax evasion (four months’ imprisonment). Partial merger of these sentences resulted in a sentence of eight years and four months’ imprisonment. Lastly, the court partially merged this sentence with the applicant’s sentence of two years and six months’ imprisonment imposed on him in the previous criminal case, which resulted in a total sentence of eight years and six months’ imprisonment.
On 16 January 2008 the Court of Appeal upheld the Assize Court’s judgment of 30 October 2007.
On 3 June 2008 the Supreme Court upheld the lower courts’ judgments.
COMPLAINTS
1. The applicant complained under Article 3 of the Convention about the conditions of his detention in the Investigative Isolator No. 1 and the MNS detention facility. In particular, he complained that he had not been allowed to receive newspapers and magazines, had been handcuffed and searched every time when taken out of his cell, had not been allowed personal visits, and had been held in a single cell of 8 square meters which had been badly ventilated and in which the electric light had been switched on throughout the day and night.
2. The applicant complained under Article 5 §§ 1 (c), 3 and 4 of the Convention about the detention order of 3 July 2007. In particular, he complained that there had been no reasonable suspicion that he had committed a crime and that the domestic courts had failed to give sufficient reasons for his detention on remand.
3. The applicant complained, relying on Articles 6 § 1 and 13 of the Convention, that:
(a) the court of first instance in the first set of criminal proceedings had not constituted a “tribunal established by law” because the terms of office of its judges had expired in 2005;
(b) that the domestic courts in both sets of criminal proceedings, and in particular the court of first instance in the first set of criminal proceedings, had not been independent and impartial; and
(c) that he had been deprived of his right to have a fair determination of the criminal charges against him and right to an effective domestic remedy.
4. The applicant complained under Article 6 § 2 of the Convention that his presumption of innocence had been violated by the fact that on 31 May 2007, before the trial in the second criminal case, the Chief Prosecutor had made a public statement accusing him of having committed a serious crime, as well as by the fact that, during the trial, he had always been brought to the courtroom in handcuffs and placed in a metal cage during the hearings.
5. The applicant complained under Article 6 § 3 of the Convention that, despite having been transferred to the MNS detention facility on 26 May 2008 due to investigation-related reasons in the second set of criminal proceedings, he had not been informed of the nature and cause of the accusation against him until 3 July 2008.
6. The applicant complained under Article 7 of the Convention that the acts for which he had been convicted did not constitute a criminal offence.
7. The applicant complained under Article 8 of the Convention that the searched conducted on 22 May 2007 in his apartment and the newspaper’s office had violated his right to respect for his home.
8. The applicant complained under Article 10 of the Convention that his convictions in both sets of criminal proceedings had violated his right to freedom of expression.
QUESTIONS TO THE PARTIES
1. Did the applicant have fair hearings in the determination of the criminal charges against him in both sets of criminal proceedings, in accordance with Article 6 § 1 of the Convention? Moreover:
(a) Could the court which heard the applicant’s first criminal case be considered as a “tribunal established by law”, as required by Article 6 § 1 of the Convention? Had the term of office of the presiding judge expired before the trial commenced and, if so, did he have competence to participate in the trial?
(b) Was the court which dealt with the applicant’s first case independent and impartial, as required by Article 6 § 1 of the Convention, given that the applicant’s criminal trial was presided over by the same judge who had previously examined the civil claim against the applicant relating to the same subject matter?
2. Was the presumption of innocence, guaranteed by Article 6 § 2 of the Convention, respected in the present case? In particular, was the Chief Prosecutor bound to respect the presumption of innocence when making his statement to the press on 31 May 2007?
3. In connection with each of the applicant’s criminal convictions, has there been an interference with the applicant’s freedom of expression, in particular his right to impart information and ideas, within the meaning of Article 10 § 1 of the Convention? If so, was that interference necessary in terms of Article 10 § 2?
4. The parties are requested to submit, inter alia: (a) a full copy of the applicant’s article entitled “Karabakh Diary”, as published in Realny Azerbaijan; (b) a copy of the Yasamal District Court’s judgment of 6 April 2007 concerning the civil claim against the applicant; (c) copies of all the evidence, as contained in the case file of the criminal proceedings, which was examined by the Yasamal District Court during the trial for the purpose of establishing the applicant’s authorship of statements posted on the forum of the AzeriTriColor website; and (d) copies of all appeals and any objections filed by the applicant during both criminal trials, including a copy of his objection to the participation of the judges of the Yasamal District Court in the first set of criminal proceedings.
