Voorhoof, Dirk

English

Ghent University Academic Bibliography

IRIS 2017-7/1European Court of Human Rights: Huseynova v. AzerbaijanThe European Court of Human Rights (ECtHR) recently dealt with a case that illustrates the dramatic situation ofviolence against journalists in some countries and the often remaining impunity for crimes against journalists (seeIRIS 2017-3/3 and IRIS 2016-5/3). It also shows the difficulties the victims or their families can be confronted within invoking the European Convention on Human Rights (ECHR).Elmar Huseynov was a prominent independent journalist in Azerbaijan and the editor-in-chief of the weekly mag-azine Monitor. Various civil and criminal proceedings had been brought against him for the publication of criticalarticles about the President of Azerbaijan and members of his family, and about members of the parliament,government and other state officials. Moreover, copies of the magazine had been confiscated on several occa-sions and the domestic authorities sometimes prevented its publication. After having received threats becauseof his critical articles, and in particular shortly after having been told by a public official to stop writing about thePresident and his family, on 2 March 2005, Mr Huseynov was shot dead in his apartment building as he returnedhome from work. Huseynov’s murder received widespread local and international media coverage and was unan-imously condemned by various politicians, international organisations, and local and international NGOs. Criminalinvestigations were instituted immediately after the murder and numerous investigative actions were taken, but12 years later the criminal proceedings were still ongoing and the perpetrators of the crime had not yet beenprosecuted. Before the ECtHR, Ms Rushaniya Saidovna Huseynova alleged that her husband had been murderedby Azerbaijani State agents and that the authorities had failed to conduct an effective investigation, and hencebreached Article 2 (the right to life) of the European Convention on Human Rights (ECHR). She further alleged thatthe killing of her husband had constituted a breach of the right to freedom of expression (Article 10 ECHR), as hehad been targeted on account of his journalistic activity.With regard to the merits of the complaint and the alleged violation of Article 2 ECHR, the ECtHR observes thatMs Huseynova made allegations about the involvement of state agents or the state in general in the murder ofher husband, because of his journalistic activity. The ECtHR however considered that there was no evidence forthese allegations. The Court next referred to the duty of the state not only to refrain from the intentional andunlawful taking of life, but also to take appropriate steps to safeguard the lives of those within its jurisdiction.This involves a primary duty for the state to secure the right to life by putting in place effective criminal lawprovisions to deter the commission of offences against the person, backed up by law enforcement machineryfor the prevention, suppression, and punishment of breaches of such provisions. It also extends, in appropriatecircumstances, to a positive obligation on the authorities to take preventive operational measures to protect anindividual or individuals whose lives are at risk. However, for a positive obligation to arise, it must be establishedthat the authorities knew or ought to have known at the time of the existence of a real and immediate risk tothe life of a particular individual or individuals from the criminal acts of a third party, and that they failed to takemeasures within the scope of their powers which, judged reasonably, might have been expected to avoid that risk.The ECtHR points out that Mr Huseynov had never applied to the domestic authorities for protection or informedthem of any danger or threat to his life and it further observes that the law enforcement authorities had not beenaware of any danger to his life, nor had they held any information which might give rise to such a possibility. TheECtHR concluded that it had no evidence indicating that the domestic authorities knew or ought to have known atthe time of the existence of a real and immediate risk to the life of Mr Huseynov and failed to protect his right tolife. Accordingly, there has been no violation of the substantive limb of Article 2 ECHR.As to the procedural limb of Article 2 ECHR, with regard the alleged failure to carry out an effective investigation,the ECtHR did find a violation. The ECtHR referred to a number of shortcomings in the criminal investigationcarried out by the domestic authorities. The ECtHR is of the opinion that the Azerbaijani authorities did noteffectively examine the possibility of prosecuting the alleged perpetrators of the murder in Georgia by transferringthe criminal case there, after the investigation had identified two suspects who were on the territory of the Stateof Georgia, which refused to extradite them. The ECtHR also noted that even though Ms Huseynova was grantedvictim status in the investigation, she has been constantly denied access to the case file during the investigation,and she only obtained copies of some documents from the case file for the first time when the Governmentsubmitted its observations to the ECtHR. That situation deprived her of the opportunity to safeguard her legitimateinterests and prevented any scrutiny of the investigation by the public. The ECtHR furthermore considered that thecriminal investigation was not carried out promptly, taking into account its overall length of over 12 years. Finally,it was apparent that the murder of Mr Huseynov could have a “chilling effect” on the work of other journalists inAzerbaijan. According to the ECtHR it does not appear that adequate steps were taken during the investigationto inquire sufficiently into the motives behind the killing of Mr Huseynov and to investigate the possibility thatthe attack could have been linked to his work as a journalist. On the basis of these findings the ECtHR concludesIRIS 1that the domestic authorities failed to carry out an adequate and effective investigation into the circumstancessurrounding the killing of Ms Huseynova’s husband. It accordingly held that there had been a violation of theprocedural limb of Article 2 ECHR.With regard to the complaint under Article 10, the ECtHR noted that the allegations arise out of the same facts asthose already examined under Article 2. Having regard to its finding of a violation of Article 2 under its procedurallimb because of the ineffectiveness of the investigation into the killing of Ms Huseynova’s husband, the ECtHRconsiders that it is not necessary to examine the complaint under Article 10 ECtHR separately.• Judgment by the European Court of Human Rights, Fifth Section, Huseynova v. Azerbaijan, Application no. 10653/10, 13 April 2017http://merlin.obs.coe.int/redirect.php?id=18543ENDirk VoorhoofHuman Rights Centre, Ghent University (Belgium), University of Copenhagen (Denmark), Legal Human Academyand member of the Executive Board of the European Centre for Press and Media Freedom (ECPMF, Germany)The objective of IRIS is to publish information on legal and law-related policy developments that are relevant to theEuropean audiovisual sector. Despite our efforts to ensure the accuracy of the content, the ultimate responsibilityfor the truthfulness of the facts on which we report is with the authors of the articles. Any opinions expressedin the articles are personal and should in no way be interpreted as representing the views of any organisationsrepresented in its editorial board.© European Audiovisual Observatory, Strasbourg (France)IRIS 2

European Court of Human Rights : Huseynova v. Azerbaijan

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European Court of Human Rights : Huseynova v. Azerbaijan

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