Communicated on 7 January 2016

FIFTH SECTION

Application no. 4903/09 Ilgar NASIBOV against Azerbaijan lodged on 15 December 2008

STATEMENT OF FACTS

The applicant, Mr Ilgar Elbayi oglu Nasibov , is an Azerbaijani national who was born in 1965 and lives in Nakhchivan . He is represented before the Court by Mr R. Hajili and Mr E. Sadigov , lawyers practising in Azerbaijan.

The facts of the case, as submitted by the applicant, may be summarised as follows.

A. The circumstances of the case

1. Background

The applicant and his wife were journalists. They were based in Nakhchivan and both worked as reporters for Radio Free Europe/Radio Liberty. According to the applicant, both of them had, on numerous occasions, been subjected to pressure and police violence in Nakhchivan owing to their journalistic activity.

The applicant and his wife were also human-rights defenders and operated an NGO named Resource Centre for Democracy and Development of NGOs.

At the time of the events concerning the present case, the applicant was in detention. On 6 December 2007 the Nakhchivan City Court had convicted him in a defamation case unrelated to the present case and sentenced him to three months ’ imprisonment.

On 10 December 2007 the Supreme Court of the Nakhchivan Autonomous Republic (an appellate court; hereafter “the Nakhchivan Supreme Court”) terminated the criminal proceedings concerning the unrelated defamation case and quashed the sentence.

2. Searches in the applicant ’ s flat and office

In the meantime, on 6 December 2007 the Nakhchivan City Court had issued a warrant authorising search and seizure in the applicant ’ s flat, based on a complaint made on an unspecified date by four individuals under the private prosecution procedure. The four private prosecutors were public officials and a businessman who alleged that the applicant had disseminated defamatory information about them. They sought his conviction under Article 147 of the 2000 Criminal Code.

It appears that the search was conducted in the presence of the applicant ’ s wife, after she had been contacted by phone and had arrived home from the applicant ’ s court hearing of 6 December 2007 in the unrelated defamation case.

Police officers conducting the search seized the applicant ’ s computer together with its accessories, eighty-six CDs, five floppy discs, three USB flash drives and other equipment. The seized items were eventually returned in January 2008.

The police officers did not present the search warrant to the applicant, who was in detention at that time, or to his wife and did not produce a record of the search-and-seizure operation.

After searching the applicant ’ s flat, the police officers broke into the office of the applicant ’ s NGO, entered and searched the office in the absence of the applicant and his wife, and seized several computers and other equipment, a number of USB flash drives and floppy discs, accounting books, various notebooks and other items. Neither the applicant nor his wife were informed of the search of the office in advance and only found out about it the following day. Some of the items seized from the office were returned a few days later, while others were never returned.

3. The applicant ’ s conviction

On 10 December 2007, the same day as the Nakhchivan Supreme Court terminated the unrelated defamation proceedings and lifted the charge, the applicant was brought before the Nakhchivan City Court. He was convicted of defamation under Article 147 of the Criminal Code in private prosecution proceedings instituted by the four individuals mentioned above.

Before the hearing, neither the applicant nor his lawyer had received any information about the existence of the new criminal charge against him and had not seen any of the documents in the case file.

At the hearing, the applicant learned that the private prosecutors accused him of writing an article entitled “The activities of the PKK in the Nakhchivan Autonomous Republic”, in which their names had been wrongfully linked to the PKK, a terrorist organisation operating in Turkey. The article stated that they had provided financial, moral and political support to PKK activities and were involved in cross-border drug trafficking. An article with similar content, not written by the applicant, had already been published over a year earlier in the Azadliq newspaper, but no action had been taken by the private prosecutors against that newspaper at the time. According to the private prosecutors, the applicant wrote his article on 23 April 2003 and sent a copy of it by e-mail to a reporter of the Bizim Yol newspaper, enquiring whether it could be published in the newspaper. The reporter consulted the newspaper ’ s editor-in-chief, who refused publication. The private prosecutors argued that the applicant had disseminated defamatory statements about them by way of e-mailing the article to the reporter and editor-in-chief of Bizim Yol .

The applicant stated before the court that he had not written the article himself. He claimed that in April 2007 he had found a floppy disc containing the article on the doorstep of his flat, which was a common way for anonymous sources to transmit information to him. He decided to forward the article to his friend, a reporter of Bizim Yol , who could then decide what to do with it. His friend had later responded that the article could not be published and that an article containing similar information had already been published in Azadliq in May 2006. The applicant further stated that, after that, he had not told anyone else about the content of the article.

The court also heard the private prosecutors, the Bizim Yol reporter and a computer expert who stated that a Word document containing the impugned article had been found in the applicant ’ s computer seized from his office, that the document had been last edited on 23 April 2007 and, on the same day, had been sent as an e-mail attachment to the Bizim Yol reporter.

The court found that the applicant had deliberately disseminated false, slanderous information about the private prosecutors by divulging the information to two other persons, namely a reporter and the editor-in-chief of Bizim Yol . The court convicted the applicant under Article 147.2 of the Criminal Code and imposed a conditional sentence of one year ’ s imprisonment.

Following the conviction, the applicant was not provided with copies of the original complaints by the private prosecutors, the search warrant or other relevant documents in the case file. According to him, copies of all those documents were given to him only in the course of the appellate hearing.

The applicant appealed, reiterating his version of the events and arguing, inter alia , that:

(a) contrary to the requirements of the domestic law and Articles 8 and 10 of the Convention, the searches in his home and office had been unlawful; the search warrant in respect of his home had been defined in very broad terms and, by conducting the search and seizing a number of electronic storage devices and documents containing information on the identities of his anonymous sources, the authorities had breached the confidentiality of journalistic sources;

(b) he had not been informed about the criminal proceedings instituted under the private prosecution procedure before being brought to the court hearing and therefore he had not had adequate time and facilities to prepare his defence;

(c) his conviction under Article 147.2 of the Criminal Code had been unlawful, because sending a private e-mail did not amount to public dissemination of information, within the meaning of that provision;

(d) his conviction had violated his rights under the domestic law and Article 10 of the Convention, which prohibited the imposition of a criminal penalty of imprisonment in cases such as his, as it constituted a disproportionate measure restricting freedom of expression.

By a judgment of 18 January 2008 the Nakhchivan Supreme Court dismissed the applicant ’ s appeal and upheld the first-instance court ’ s judgment. It dismissed the applicant ’ s argument that he had not disseminated the article in question publicly, within the meaning of Article 147 of the Criminal Code. It relied on a decision of the Plenum of the Supreme Court of 14 May 1999 “On the application by the courts of the legislation on protection of honour and dignity”, which stated that “dissemination” meant divulging slanderous information to “another person or several persons”.

The applicant lodged an appeal on points of law with the Supreme Court.

On 17 June 2008 the Supreme Court dismissed the applicant ’ s appeal and upheld the lower courts ’ judgments.

B. Relevant domestic law

Article 147 of the 2000 Criminal Code provides:

Article 147. Defamation

“ 147.1. Defamation, that is dissemination of knowingly false information, discrediting the honour and dignity or damaging the reputation of a person, in a public address, publicly demonstrated creative work or in the mass media –

is punishable by a fine in the amount of one hundred to five hundred manats , or community service for a period of up to two hundred and forty hours, or correctional work for a period of up to one year, or imprisonment for a period of up to six months.

147.2. Defamation accompanied by an unfounded accusation of committing a serious or especially serious crime –

is punishable by correctional work for a period of up to two years, or restriction of liberty for a period of up to two years, or imprisonment for a period of up to three years.”

COMPLAINTS

1. The applicant complains under Article 6 §§ 1 and 3 (a) and (b) of the Convention that the manner in which the domestic proceedings were conducted breached his rights to equality of arms, to be informed promptly about the nature and cause of the accusation against him, and to have adequate time and facilities for the preparation of his defence.

2. The applicant complains under Article 7 of the Convention that the act of which he was convicted did not constitute a criminal offence under national law.

3. The applicant complains under Article 8 of the Convention that the searches and seizures carried out in his flat and office constituted an unlawful and unjustified interference with his right to respect for his home and private life.

4. The applicant complains under Article 10 of the Convention that both the authorities ’ seizure of devices containing information on his anonymous sources and his criminal conviction constituted unlawful and unjustified interferences with his right to freedom of expression.

QUESTIONS TO THE PARTIES

1. Did the applicant have a fair hearing in the determination of the criminal charge against him, in accordance with Article 6 § 1 of the Convention? In particular, was the principle of equality of arms respected? Was the applicant informed promptly and in sufficient detail of the nature and cause of the accusation against him, as required by Article 6 § 3 (a) of the Convention? Was he afforded adequate time and facilities to prepare his defence , as required by Article 6 § 3 (b) of the Convention?

2. In respect of the searches and seizures that took place in the applicant ’ s home and office, h as there been an interference with the applicant ’ s right to respect for his private life and home, within the meaning of Article 8 § 1 of the Convention? If so, was that interference in accordance with the law and necessary in terms of Article 8 § 2?

3. In respect of the searches and seizures in the applicant ’ s home and office, his criminal conviction and the prison sentence imposed on him, has there been an interference with the applicant ’ s freedom of expression, in particular his right to receive and impart information and ideas, 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?

4. Did the act of which the applicant was convicted constitute a criminal offence under national law at the time when it was committed, as required by Article 7 of the Convention?

5. The Government are requested to inform the Court of the date when the applicant was formally charged with a criminal offence and submit copies of all material in the criminal case file.