CASE OF MAHMUDOV AND AGAZADE v. AZERBAIJAN
Violation of Art. 10;Pecuniary damage - claim dismissed;Non-pecuniary damage - award
Anatoly Kovler;Christos Rozakis;Elisabeth Steiner;George Nicolaou;Giorgio Malinverni;Khanlar Hajiyev
5. The applicants were born in 1961 and 1979 respectively and live in Baku. 6. The first applicant was the acting chief editor of the Müxalifət newspaper. The second applicant was a journalist working for the same newspaper. 7. In its issue of 12-18 April 2003, the newspaper published an article named “Grain Mafia in Azerbaijan” (“Azərbaycanda taxıl mafiyası”), under the by-line of Samir Sharif, a pseudonym of the second applicant. The article was accompanied by a picture of J.A., who was a member of the National Academy of Sciences, a well-known expert in agriculture, and a member of the Milli Mejlis (Parliament). The article generally spoke about a number of problems in the country’s agricultural sector. It also appeared to imply, amongst other things, that J.A. was in charge of the breeding of certain experimental crops in “experimental” fields in several agricultural regions. J.A.’s name was printed in full in the article itself. 8. Specifically, the article read as follows (translated from Azerbaijani): “[President] Heydar Aliyev’s famous conference in Sumgait was rich in memorable moments. Naturally, in the essence of this richness, it is impossible not to notice the scale of arbitrariness and corruption and how the entire nation is held up to ridicule. But we are not talking about the dismissal ... of [certain government officials] for reasons which remain obscure to many. We are also not talking about how it was far from logical to accuse of stinginess a businessman named Isgandarov who has spent more than 30,000 dollars on charity in one year, while not a single member of the clan which has misappropriated billions of dollars of the country’s wealth is willing to expend a penny on development of our motherland. What is interesting is that the Head of State accused the people, whom he had turned into an object of reproach, of nepotism ... and monopolisation of the private sector in Sumgait. Aliyev says that he has refused to appoint his relatives to any [official] positions despite [having received] insistent requests in this regard. But what he does not say is that there is no person in this country other than the son Aliyev who simultaneously occupies four “armchairs”. Speaking of seizing control over [well-to-do sectors of economy], today even a baby who is just learning to speak knows which people control such a huge sphere of the Azerbaijani economy as the agricultural sector. Thousands of hectares of fertile land in Azerbaijan have been turned into an experimental zone for “valuable sorts” of grains. For almost ten years the agricultural sector has been plundered as if it were in the private ownership of the certain known person. During the Soviet period agriculture was the main contributor to the gross domestic product and the main area of the population’s employment. However, in the Aliyev era of independence, the agrarian sector, like all other sectors of the economy, has been monopolised to serve the interests of peri-governmental circles. With the exception of grain and livestock farming, other leading branches of agriculture have slumped. The productivity level of poultry farming has decreased from 143,000 tonnes in 1995 to 35,000 tonnes in 2002. Viticulture can be said to have been completely ruined, while cotton growing is in such an acute state of decline that within the last 10 years its share in the total agricultural product has decreased from 12-13% to 2%. As a result of appropriation of the cotton-processing industry by a group of monopolists, cotton planters are being seriously exploited. At the moment fourteen of the twenty-one cotton-ginning plants existing in the country are controlled by a company named MKT. This company’s share of all the cotton processed in the country last year was 85%. [A description is given of various specific monopolistic policies pursued by this company.] The development of the grain-growing industry is under the special care of a group [of persons] who have monopolised this sphere. For two years the people in the provinces either cannot sell the grain they have grown under considerable hardship or, in the best-case scenario, are forced to sell it for 350-400 manats per kilogramme. For example, during the last harvest season in such big grain-growing regions as Saatli, Beylagan and Agjabedi, the local executive authorities either prevented the major grain buyers from Baku from entering these regions or forced them to buy grain from specified fields. [This was done] for a simple reason – in order to sell, in a timely manner, all the grain from the thousands of hectares of [J.A.’s] ‘experimental’ fields in these regions. It is clear that, as simple peasants do not possess necessary facilities (such as special buildings) for storage of grain, they are forced to sell their crop at low prices. The land reform is often spoken about. But at the same time several important issues are forgotten. Firstly, as many as half of those who are given a share of land do not possess even the minimum facilities to cultivate it. Secondly, thousands of hectares of fertile land, labelled as ‘state land fund’ during the land reform, are held hostage by the ‘agrarian mafia’, and not a single penny goes to the state budget from its lease. Nowadays this mafia ... bends over backwards to obtain from the State about 250 million dollars in yearly subsidies for the development of agriculture. But no one is asking the Minister of Agriculture ... why, if he cares so much about the development of agriculture, he sells the equipment donated by the Japanese government, and not even for discount prices, but for prices higher than the ex-factory price. These people – those who sell a plough, which they have obtained free of charge, to the peasant for four to five thousand dollars, a tractor for fourteen to fifteen thousand dollars, and a grain combine harvester for fifty thousand dollars – now they want to get money from the State to revive agriculture. Sorry, but we aren’t duped by you. Your ‘Programme for the Development of Agriculture to 2015’, which you have submitted to the Government [for implementation], is not a programme aimed at supporting the peasant, but a programme allowing you to increase your personal wealth at a cost of 150-200 million dollars which you snatch from the State budget every year.” 9. On 23 April 2003 J.A. filed a criminal complaint with the Yasamal District Court using the procedure of a private prosecution. He claimed that the article clearly referred to him in a defamatory, slanderous and insulting manner. Specifically, he cited the following extracts as defamatory: “... today even a baby who is just learning to speak knows which people control such a huge sphere of the Azerbaijani economy as the agricultural sector. Thousands of hectares of fertile land in Azerbaijan have been turned into an experimental zone for “valuable sorts” of grains. For almost ten years the agricultural sector has been plundered as if it were in the private ownership of the certain known person. ... The development of the grain-growing industry is under the special care of a group [of persons] who have monopolised this sphere. For two years the people in the provinces either cannot sell the grain they have grown under considerable hardship or, in the best-case scenario, are forced to sell it for 350-400 manats per kilogramme. For example, during the last harvest season in such big grain-growing regions as Saatli, Beylagan and Agjabedi, the local executive authorities either prevented the major grain buyers from Baku from entering these regions or forced them to buy grain from specified fields. [This was done] for a simple reason – in order to sell, in a timely manner, all the grain from the thousands of hectares of [J.A.’s] ‘experimental’ fields in these regions. ...” 10. J.A. argued that the article clearly implied that he was in close contact with certain alleged criminal circles and thus, in essence, accused him of serious crimes such as the misappropriation of state funds allocated for agricultural research. He contended that the second applicant had deliberately made false statements damaging to his reputation and that the first applicant, as an acting chief editor, had failed to prevent this. He requested the court to convict the applicants under Articles 147.1 (defamation) and 148 (insult) of the Criminal Code. 11. During the trial, the applicants argued that the article had not contained any defamatory or insulting statements about J.A. They maintained that the phrase “the certain known person” did not refer to J.A. The picture of J.A. was placed in the article because of his general achievements in the development of grain farming. Lastly, they noted that the article was concerned with the general situation of the agricultural sector and that it contained no information specifically accusing J.A. of any criminal activity. 12. By a judgment of 20 May 2003, the Yasamal District Court convicted the applicants of defamation and insult under Articles 147.1 and 148 of the Criminal Code. Having examined the extracts from the article quoted above (see paragraph 9), the court noted that the applicants’ denial of the fact that the article had anything to do with J.A. was groundless, because the text of the article clearly mentioned J.A.’s name in full and clearly stated that thousands of hectares of grain fields belonged to him. The court went on to find that: “... expression by Y. Agazade of the idea of the existence of a mafia that does not exist in reality and his dissemination of this idea through the mass media constitutes defamation, that is, deliberate dissemination of false information tarnishing J.A.’s honour and dignity and damaging his reputation. Therefore, the court finds that, by disseminating [through the mass media] the information about the existence of a mafia that does not exist in reality, Y. Agazade committed an offence under Article 147.1 of the Criminal Code, and that, by making and disseminating the statement ‘in order to sell, in a timely manner, all the grain from the thousands of hectares of [J.A.’s] ‘experimental’ fields in these regions’, Y. Agazade committed an offence under Article 148 of the Criminal Code. The other accused person, R. Mahmudov, bears the same criminal responsibility for [allowing such dissemination as the newspaper’s acting chief editor]. Accordingly, R. Mahmudov and Y. Agazade must be found guilty under Articles 147.1 and 148 of the Criminal Code.” 13. The court sentenced each applicant to three months’ imprisonment under Article 147.1 of the Criminal Code and three months’ imprisonment under Article 148 of the Criminal Code. By partially merging these sentences, the court fixed a total sentence of five months’ imprisonment in respect of each applicant. At the same time, applying section 2.3 of the Milli Mejlis (Parliament) Resolution on Amnesty in Connection with the Anniversary of the Victory over Fascism in World War II, dated 6 May 2003, the court exempted them from serving their sentences. 14. The applicants appealed. They argued that the article discussed a number of problems in the agricultural sector and did not specifically relate to J.A. The fact that it contained J.A.’s picture and a statement that he possessed thousands of hectares of grain fields did not amount to defamation or insult. In respect of that statement, they argued that it was a generally known fact and did not offer any evidence in its support. The applicants also argued that J.A. and the Yasamal District Court had wrongly construed the totality of statements contained in the article as defamatory whereas their intended meaning was harmless. 15. On 16 July 2003 the Court of Appeal upheld the Yasamal District Court’s judgment. 16. On 2 March 2004 the Supreme Court upheld the lower courts’ judgments. 17. Articles 47 and 50 of the Constitution guarantee freedom of thought and speech and freedom of the mass media. 18. Article 147.1 of the Criminal Code provided as follows: “Defamation, that is dissemination, in a public statement, publicly exhibited work of art or in mass media, of knowingly false information discrediting the honour and dignity of a person or damaging his or her reputation – is punishable by a fine in the amount of one hundred to five hundred conditional financial units, or by community service for a term of up to two hundred and forty hours, or by corrective labour for a term of up to one year, or by imprisonment for a term of up to six months.” 19. Article 148 of the Criminal Code provided as follows: “Insult, that is deliberate humiliation of the honour and dignity of a person, expressed in an obscene manner in a public statement, publicly exhibited work of art or in mass media – is punishable by a fine in the amount of three hundred to one thousand conditional financial units, or by community work for a term of up to two hundred and forty hours, or by corrective labour for a term of up to one year, or by imprisonment for a term of up to six months.” 20. According to Article 81 of the Criminal Code, persons convicted of a criminal offence may be exempted from serving their sentence by an amnesty act. According to Article 83.1, a convicted person retains a criminal record until his or her conviction is removed or expunged. According to Article 83.2, the conviction of a person dispensed from serving his sentence is considered to be expunged. 21. The Milli Mejlis (Parliament) Resolution on Amnesty in Connection with the Anniversary of the Victory over Fascism in World War II, dated 6 May 2003, exempted a large number of convicts (with a number of exceptions) from serving their sentences or the remainder of their sentences. The amnesty applied to persons who had committed a criminal offence prior to the entry into force of the Resolution. Section 2.3 of the Resolution provided as follows: “Persons sentenced, for deliberate commission of a criminal offence, to imprisonment for a term of no more than three years shall be dispensed from serving their sentences.” 22. Article 10 of the Law on Mass Media of 7 December 1999 prohibits the mass media from, inter alia, publishing defamatory material. According to Article 60, editors of mass media sources and journalists may be held liable criminally, administratively or otherwise, if, inter alia, an editor fails to ensure the compliance of the published material with the requirements of this Law, or if the published material interferes with an individual’s private life.