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IRIS 2015-3:1/1

European Court of Human Rights

Uzeyir Jafarov v. Azerbaijan

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Dirk Voorhoof

Ghent University (Belgium) & Copenhagen University (Denmark) & Member of the Flemish Regulator for the Media

In a case related to a violent attack on a journalist, the European Court reiterated that the States have positive obligations under the European Convention on Human Rights to create a favourable environment for participation in public debate by all the persons concerned, enabling them to express their opinions and ideas without fear. Because of failures to carry out an effective investigation, the European Court found that the criminal investigation of a journalist’s claim of ill-treatment was ineffective and that accordingly there has been a violation of Article 3 (prohibition of torture or inhuman or degrading treatment) of the Convention under its procedural limb.

In 2007, Uzeyir Jafarov had been the victim of a violent attack by two men, only a few hours after publishing an article in a newspaper in which he accused a senior military officer of corruption and illegal activities. The journalist was hit several times with a hard blunt object and he was also punched by his aggressors. The attack took place just in front of the newspaper’s office. Having heard the journalist’s screams, his colleagues came out of the office and the assailants left the scene of the incident by car. The journalist however recognised one of his two assailants: this person (N.R.) was a police officer from the Yasamal District Police Office. Also, other journalists could confirm that they had seen N.R. standing outside the newspaper’s office on the day of the attack. Although formally a criminal investigation was started in connection with the attack on the journalist, no further steps were taken in order to identify the perpetrators. In a newspaper interview the Minister of Internal Affairs was questioned about the attack on Uzeyir Jafarov. In that interview the Minister stated that the journalist had staged the attack on himself. The same day, the journalist lodged a complaint with the Prosecutor General, complaining of the police authorities’ failure to conduct an effective investigation. But this action had no further result.

Relying on Article 3 of the European Convention, the journalist complained that State agents had been behind the attack on him and that the domestic authorities had failed to carry out an effective investigation in respect of his ill-treatment. In particular, the journalist pointed out that the investigator had failed to order an official identity parade including the police officer N.R. who had been one of his aggressors, to question his colleagues from the newspaper as witnesses and to obtain video recordings from security cameras situated in the vicinity of the scene of the incident. The European Court found numerous shortcomings in the investigation carried out by the domestic authorities. The Court inter alia referred to the fact that the journalist’s complaint was examined by the police office where the officer who had allegedly committed the offence was based. In the Court’s view, an investigation by the police into an allegation of misconduct by one of its own officers could not be independent in these circumstances. The Court also noted that, despite explicit requests by the journalist, the domestic authorities failed to take all steps reasonably available to them to secure the evidence concerning the attack. The Court further considered that the public statement by the Minister of Internal Affairs showed that during the investigation the domestic authorities were more concerned with proving the lack of involvement of a State agent in the attack on the journalist than with discovering the truth about the circumstances of that attack. In particular, it does not appear that adequate steps were taken to investigate the possibility that the attack could have been linked to Uzeyir Jafarov’s work as a journalist. On the contrary, it appears that the responsible authorities had already discarded that possibility in the early stages of the investigation and with insufficient reason. These elements were sufficient to enable the Court to conclude that the investigation of the journalist’s claim of ill-treatment was ineffective. There has accordingly been a violation of Article 3 of the Convention under its procedural limb.

According to the European Court, it was not possible however to establish that the journalist had been subjected to the use of force by a State agent or that a State agent had been behind the attack on the journalist with the aim of interfering with his journalistic work. The Court considered that the present case should also be distinguished from other cases, where the domestic authorities ‒ which were aware of a series of violent actions against a newspaper and persons associated with it ‒ did not take any action to protect the newspaper and its journalists. In the present case, by contrast, neither the journalist nor the newspaper had been subjected to violent actions before. Moreover, the journalist had not lodged any request for protection with the domestic authorities before the attack on him. The Court emphasised that its inability to reach any conclusions as to whether there has, in substance, been treatment prohibited by Article 3 of the Convention, derived to a large extent from the failure of the domestic authorities to carry out an effective investigation at the relevant time. However, the Court could not establish a substantive violation of Article 3 of the Convention in respect of the attack on the journalist.

Finally the Court’s task was also to establish whether or not the journalist’s right to freedom of expression had been violated on account of the domestic authorities’ failure to conduct an effective investigation into the attack on him. The Court noted that the journalist’s allegations in this respect arise out of the same facts as those already examined under Article 3 of the Convention and found to be a violation of Article 3. Having regard to those findings, the Court considered that the complaint under Article 10 of the Convention did not raise a separate issue and that therefore it was not necessary to examine the complaint again under Article 10 of the Convention. The Government of the Republic of Azerbaijan is ordered to pay the journalist a sum of EUR 10,000 in respect of non-pecuniary damage and EUR 4,400 in respect of costs and expenses.

References
Judgment by the European Court of Human Rights (First Section), case of Uzeyir Jafarov v. Azerbaijan, Appl. No. 54204/08 of 29 January 2015 EN
 http://merlin.obs.coe.int/redirect.php?id=17414