On January 10, 2019, the International Arbitration Practice at Wilmer Cutler Pickering Hale and Dorr LLP, acting alongside the Media Legal Defence Initiative (MLDI), obtained a significant judgment from the European Court of Human Rights (ECtHR) in Khadija Ismayilova v. Azerbaijan. In a unanimous judgment, the ECtHR found violations of the applicant’s rights to respect for private life and freedom of expression, and highlighted the “grave chilling effect” on journalism of the government’s conduct.
The applicant, Khadija Ismayilova, is an investigative journalist who is renowned for her work in exposing corruption in the Azerbaijani government. In early 2012, after publishing a series of articles on this topic, Ms. Ismayilova received a letter enclosing stills from intimate video footage of Ms. Ismayilova in her bedroom and containing a threat that she “refrain from what [she was] doing” or be “shamed.” The footage had been recorded using cameras that were later discovered to have been hidden in Ms. Ismayilova’s home. Ms. Ismayilova reported this incident to the authorities and requested an investigation.
Shortly afterward, videos showing similar intimate scenes of Ms. Ismayilova were published online. Azerbaijani state media then widely disseminated this footage along with articles attacking Ms. Ismayilova for “immoral behaviour.”
The ECtHR found that Ms. Ismayilova had presented “strong” evidence that the intrusions into her private life were attributable to Azerbaijan, but that the evidence in this regard did not meet the requisite standard of proof (“beyond a reasonable doubt”). However, the ECtHR found that, in failing to carry out an effective investigation into the “very serious interferences” with Ms. Ismayilova’s private life, Azerbaijan had failed to comply with its positive obligation under Article 8 of the European Convention on Human Rights to ensure Ms. Ismayilova’s right to private life. The ECtHR also found that “the threat of public humiliation and the acts resulting in the flagrant and unjustified invasion of the applicant’s privacy were either linked to her journalistic activity or should have been treated by the authorities when investigating as if they might have been so linked.” As such, the Azerbaijani authorities should have taken positive measures to ensure Ms. Ismayilova’s journalistic freedom of expression. In failing to do so, Azerbaijan failed to comply with its positive obligations under Article 10 of the Convention.
Additionally, in late 2014, Ms. Ismayilova was arrested on the charge of incitement to commit suicide. She was later charged with large-scale misappropriation, illegal entrepreneurship and tax evasion, and she was subsequently convicted and sentenced to more than seven years in prison. In May 2016, after an international campaign on her behalf, Ms. Ismayilova was released from prison, although she remains under a travel ban. The firm has helped MLDI with a separate application to the ECtHR relating to Ms. Ismayilova’s imprisonment.