Interim R esolution CM/ ResDH ( 2014) 183

Execution of the judgments of the European Court of Human Rights

Mahmudov and Agazade against Azerbaijan

Fatullayev against Azerbaijan

Application

Case

Judgment of

Final on

35877/04

MAHMUDOV AND AGAZADE

18/12/2008

18/03/2009

40984/07

FATULLAYEV

22/04/2010

4/10/2010

( adopted by the Committee of Ministers on 25 September 2014 at the 1208th meeting of Ministers ’ Deputies)

The Committee of Ministers, under the terms of Article 46, paragraph 2, of the Convention for the Protection of Human Rights and Fundamental Freedoms, as amended by Protocol No. 11 (hereinafter “the Convention”),

Recalling that the present cases concern violations of the applicants ’ right to freedom of expression, in particular on account of both their unjustified conviction s and sentences of imprisonment for defamation as well as on account of the arbitrary application of other criminal laws to the detriment of freedom of expression, namely anti-terrorism legislation and legislation against incitement to ethnic hatred (violations of Article 10) ; and violations of the right to an impartial tribunal and of the right to presumption of innocence ( Fatullayev case, violations of Articles 6§1 and 6§2);

Recalling its Interim Resolution CM/ ResD H ( 2013)199 as well as the different decisions adopted since then;

Noting with interest, as regards the legislation on defamation , that, in response to the Committee ’ s decision of June 2014, the authorities intend to submit the legislative proposal of the Plenum of the Supreme Court (aim ed at reducing the imposition of prison sentences in defamation cases) to the parliamentary session of autumn 2014 and to co-operate with the Secretariat on this issue ;

Invited the authorities to specify, given the Court ’ s case-law, in the final text of their legislative proposal the situations in which it remains possible to impose prison sentences, as well as to report on the state of progress of the larger draft “law on defamation” submitted to the Venice Commission in 2012 and on the measures adopted with a view to resuming co-operation with the latter;

Insisted on the need to receive urgently a timetable of the different stages of this process;

Insisted , further , on the importance of training and awareness-raising measures for the attention of judges and prosecutors, in the continuation of the decision of principle of the Plenum of the Supreme Court of February 2014, in order to ensure that the Convention requirements are fully taken into account when applying the legislation relevant to defamation, including as regards awarding proportionate damages and interest in civil defamation cases;

Reiterating, as regards the arbitrary application of criminal legislation to limit freedom of expression , that the present situation raises serious concern s , in particular on account of the reported recent use of different criminal law s - similar to the ones used in the present group of cases (accusations of illegal activities, abuse of authority, treason, hooliganism or other crimes which can have close links to the legitimate exercise of the freedom of expression) - against journalists, bloggers, lawyers and members of NGOs;

Noted with interest, in this connection, the initiative to reintroduce the working group composed of members of the presidential administration and civil society, while underlining the importance of other rapid and concrete action, including by the highest authorities and in particular the Supreme Court, in order to ensure effective protection against arbitrariness and to guarantee that every conviction likely to affect freedom of expression is supported by “sufficient and relevant” reasons, fully in line with the Convention requirements;

Noted further with interest, as regards the independence of the judiciary, that amendments were introduced in June 2014 to the law on judges and courts, reinforcing notably the budgetary independence of the Judicial and Legal Council which seems to respond to certain recommendations made in the framework of the Eastern P artnership project;

Urged , nonetheless , the authorities to explore further measures to ensure the independence of the judiciary , taking into account the different proposals expressed before the Committee;

A lso i nvited the authorities to take urgently other measures in order to ensure a non-arbitrary application of the criminal legislation, thereby respecting freedom of expression;

Recalled, in this latter respect, the importance of strengthening training activities for judges and prosecutors aiming at better delimiting the protected right of freedom of expression, on the one hand, and criminal responsibility, on the other hand, and the interest, in this perspective, of having a new decision of the Plenum of the Supreme Court in order to guide the application by judges and prosecutors of the criminal legislation which may have close links with freedom of expression and to ensure that the requirements of this freedom are fully respected;

Invited the authorities, in the pursuit of the reforms, to seize the opportunities offered by the A ction P lan of the Council of Europe for Azerbaijan and to advance rapidly with the other measures required in this group of cases (violations of Articles 6§1 and 6§2);

Insisted, moreover, on receiving, without further delay, detailed information on all criminal charges pending against the applicants ’ representative in the present group of cases, who is also the representative in several applications in the Namat Aliyev group of cases, equally under examination by the Committee, as well as in numerous applications currently pending before the Court in relation to freedom of expression.