Background
In Tagiyev and Huseynov v Azerbaijan [2019] ECHR 875, Rafig Nazir oglu Tagiyev, now dead, was a well-known writer and columnist in Azerbaijan. Samir Sadagat oglu Huseynov used to be the editor-in-chief of Sanat Gazeti. They were convicted for publishing an article in November 2006 in Sanat Gazeti as part of a series written by Mr Tagiyev comparing Western and Eastern values. The article, entitled “Europe and us”, led to criticism by various Azerbaijani and Iranian religious figures and groups and to a religious fatwa calling for their death. Shortly after the publication of the article, they were prosecuted for inciting religious hatred and hostility.
A district court ordered their detention pending trial and the investigator in charge of the case ordered a forensic linguistic and Islamic assessment of the article. The resulting report characterised certain remarks, in particular, those concerning morality in Islam, the Prophet Muhammad, Muslims living in Europe, and Eastern philosophers, as incitement to religious hatred and hostility. The domestic courts found the applicants guilty as charged in May 2007 and sentenced them to three and four years’ imprisonment respectively. All their subsequent appeals were unsuccessful.
They were released in December 2007 following a presidential pardon, having spent more than one year in detention. Mr Tagiyev died as a result of being stabbed outside his home in 2011 and his death is part of a separate application which is pending before the ECtHR. The present application was pursued by his widow, Ms Maila Bulud gizi Tagiyeva.
The arguments
The applicants maintained that the criminal convictions had been an unjustified interference with their right to freedom of expression: all the article had done was to compare Islam and Christianity in the context of European and Eastern humanist values and human rights concepts [27]. It had not targeted any religious group or its believers and there had been no intent to incite hatred and hostility between religious groups; further, it had been published in a newspaper with a circulation of around 800 copies, with a very limited impact on society [28].
The Government agreed that the applicants’ criminal conviction had interfered with their right to freedom of expression, but the interference had been prescribed by Article 283 of the Criminal Code, had pursued the legitimate aims of protecting the rights of others and the prevention of disorder [29], and had met a pressing social need not to offend and insult religious feelings [30]. In short, it had been within the margin of appreciation afforded to states parties [31].
The judgment
The Court held, unanimously, that Ms Tagiyeva had standing to pursue the application in her late husband’s stead and declared the application admissible.
As to merits, it was not disputed that the applicants’ criminal convictions had been an interference with their Article 10 rights [32] and it had been “prescribed by law” within the meaning of Article 10§2 of the Convention [34]. The Court also accepted the Government’s submission that the interference had pursued the legitimate aims of “the protection of the rights of others” and “the prevention of disorder” [35]. As to whether the interference had been “necessary in a democratic society” however:
“The Court has stated, in particular, that freedom of expression constitutes one of the essential foundations of a democratic society and one of the basic conditions for its progress and for each individual’s self-fulfilment. Subject to Article 10§2, it is applicable not only to ‘information’ or ‘ideas’ that are favourably received or regarded as inoffensive or as a matter of indifference but also to those that offend, shock or disturb. Such are the demands of pluralism, tolerance and broadmindedness without which there is no ‘democratic society…” [36].
There was little scope under Article 10§2 for restrictions on political speech or on debates on questions of public interest; and the margin of appreciation of states parties was reduced where a debate was about a matter of public interest. Where such expressions went beyond the limits of a critical denial of other people’s religious beliefs and were likely to incite religious intolerance, for example in the event of an improper or abusive attack on an object of religious veneration, a state may legitimately consider them to be incompatible with respect for the freedom of thought, conscience and religion under Article 9 and take proportionate restrictive measures [37]. Necessity, however, implied the existence of a “pressing social need”; and states parties enjoyed only a limited margin of appreciation in assessing whether “a pressing social need” exists in cases involving press freedom [40].
In the present case, the Government had not argued that the impugned remarks in the article had constituted hate speech and that the applicants should therefore lose the protection of Article 10 by virtue of the application of Article 17 (prohibition of abuse of rights) [43]. The Court, therefore, had to weigh the competing interests the applicants’ right to free expression and the right of others to respect for their freedom of thought, conscience and religion [44]. The Court could not accept the reasons provided by the domestic courts as relevant and sufficient for the purpose of justifying the interference in question: they had failed to examine the forensic report and merely endorsed its conclusions [47]; nor had they carried out any assessment of the impugned remarks by examining them within the general context of the article [48]. A criminal conviction was a serious sanction, and:
“although sentencing is in principle a matter for the national courts, the Court does not consider that the circumstances of the present case disclosed any justification for the imposition on the applicants of such severe sanctions, which were capable of producing a chilling effect on the exercise of freedom of expression in Azerbaijan and dissuading the press from openly discussing matters relating to religion, its role in society or other matters of public interest” [49].
The applicants’ criminal convictions had been disproportionate to the aims pursued and, accordingly, not “necessary in a democratic society”. There had consequently been a breach of their Article 10 rights [50].