KERIMOV v. AZERBAIJAN
Inadmissible
Christos Rozakis
The applicant, Mr Eyyub Zakir oglu Kerimov (Eyyub Zakir oğlu Kərimov), is an Azerbaijani national who was born in 1958 and lives in Baku. He was represented before the Court by Mr I. Aliyev, a lawyer practising in Baku. The respondent Government was represented by Mr C. Asgarov, Agent of the Republic of Azerbaijan before the Court. The facts of the case, as submitted by the parties, may be summarised as follows. On 28 July 2001 an article called “The Nasimi District Deputy Prosecutor – A KGB Agent” was published in a local newspaper Femida, of which the applicant was the chief editor. The article depicted the prosecutor, T.K., as an incompetent and unprofessional prosecutor who was able to hold high-ranking posts in the prosecution authorities only due to his good personal contacts with top-level officials. The article stated, inter alia, that T.K. “had no idea of the working methods of the prosecutor’s office, and his work was limited to wandering around corridors”. On 5 September 2001 T.K. filed a lawsuit against the newspaper, claiming that the article was defamatory and damaging his reputation. He asked the court to close the newspaper, order it to pay compensation and institute criminal proceedings against the persons responsible for the article’s publication. The newspaper, represented by the applicant, filed a counterclaim, contending that T.K., by filing an allegedly abusive and frivolous lawsuit against the newspaper, damaged the newspaper’s professional reputation. On 1 October 2001 the Yasamal District Court partially upheld T.K.’s claim and dismissed the newspaper’s counterclaim. The court held that the article contained defamatory material and that the newspaper had been unable to prove its truthfulness. It ordered the newspaper to pay compensation to T.K. and to “terminate the publication and distribution” of the newspaper in accordance with the Law On Mass Media. The applicant, on behalf of the newspaper, filed an appeal. He claimed that the termination of the newspaper’s publication in fact amounted to a liquidation of the newspaper as a legal entity. He further claimed that such closure of the newspaper was unlawful, because the court could not order a liquidation of a legal entity based on a defamation complaint made by an individual. Instead, in accordance with Article 59.3 of the Civil Code, the court could order such liquidation only upon an application by the relevant government or local authority. By a judgment of 6 December 2001, the Court of Appeal dismissed the applicant’s appeal and upheld the first-instance judgment as lawful. At this point, in accordance with the domestic civil procedure law, the judgment entered into legal force and the enforcement proceedings were instituted. On 26 December 2001 the Head of the Yasamal District Bailiff’s Office (Yasamal Rayon Məhkəmə Nəzarətçiləri və Məhkəmə İcraçıları Şöbəsi) sent a letter to the applicant, requesting the newspaper to comply with the judgment voluntarily within a five-day period. It appears that the newspaper’s management complied with this request in a timely manner. Accordingly, the production and distribution of the newspaper was terminated and the moral compensation was paid to T.K. by the end of 2001. On 8 May 2002 the applicant, on behalf of the newspaper’s editorial board, filed a cassation appeal with the Supreme Court. He claimed that the Court of Appeal had committed the same errors of fact and law as the district court. On 31 July 2002 the Supreme Court dismissed the applicant’s appeal and upheld the Court of Appeal’s judgment. According to the Government, although the production and distribution of the Femida newspaper had been terminated, the newspaper’s editorial staff continued their activities through Femida’s legal successor, a newspaper called Femida 007. The applicant noted that Femida 007 was simply an addendum to the newspaper and not its legal successor. “233.1. A [first-instance] judgment enters into legal force after one month from the date of its delivery, unless an appeal has been filed against it [with the appellate court]. 233.2. A judgment, which [has been appealed but] has not been quashed on appeal, enters into legal force upon the delivery of the appellate court’s judgment [upholding the first-instance judgment]. ... “A judgment is subject to execution after its entry into legal force ...” “A judgment of the appellate-instance court enters into legal force from the moment of its delivery.” “413.0. Upon a petition by a party to the case, the cassation-instance court may suspend, until the end of the cassation proceedings, the execution of the appellate court’s judgment and the related judgment of the first-instance court ...”