SECRETARIAT GENERAL

SECRETARIAT OF THE COMMITTEE OF MINISTERS SECRETARIAT DU COMITE DES MINISTRES

Contact: Abel Campos Tel: 03 88 41 26 48

Date: 18 September/septembre 2012 DH-DD(2012)837

Documents distributed at the request of a Representative shall be under the sole responsibility of the said Representative, without prejudice to the legal or political position of the Committee of Ministers.

Meeting: 1150 DH meeting (24-26 September 2012)

Item reference: Communication from the authorities (18/09/12)

Communication from concerning the cases of Mahmudov and Agazade and Fatullayev against Azerbaijan (Application No. 35877/04).

Information made available under Rule 8.2.a of the Rules of the Committee of Ministers for the supervision of the execution of judgments and of the terms of friendly settlements.

* * * * * * * * * * *

Les documents distribués à la demande d’un/e Représentant/e le sont sous la seule responsabilité dudit/de ladite Représentant/e, sans préjuger de la position juridique ou politique du Comité des Ministres.

Réunion : 1150 réunion DH (24-26 septembre 2012)

Référence du point : Communication des autorités

Communication de l’Azerbaïdjan relative à l’affaire Mahmudov et Agazade et Fatullayev contre Azerbaïdjan (requête n° 35877/04) (anglais uniquement).

Informations mises à disposition en vertu de la Règle 8.2.a des Règles du Comité des Ministres pour la surveillance de l’exécution des arrêts et des termes des règlements amiables.

Additional Information concerning the implementation of additional measures

Application no. 35877/04 Mahmudov and Agazade v. Azerbaijan Application no. 40984/07 Fatullayev v. Azerbaijan

In its judgments the European Court of Human Rights stated that “the imposition of a prison sentence for a press offence will be compatible with journalists’ freedom of expression as guaranteed by Article 10 of the Convention only in exceptional circumstances, notably where other fundamental rights have been seriously impaired, as, for example, in cases of hate speech or incitement to violence.” The Government have previously submitted the statistical information on application by the domestic courts of Articles of the Criminal Code defining libel and insult. According to the latest information, domestic courts have continued their strict approach to the application of Articles 147 and 148 of the Criminal Code and in 2011-2012 there was no conviction for these offences. Examples of judgments and their English translation are attached to this information. In this regard, the National Programme for Action approved by the President of the Republic of Azerbaijan on 27 December 2011, provided for the Administration of the President of the Republic of Azerbaijan to launch the legislative work to decriminalise defamation. With this in mind, on 18 September 2012, the Head of the Presidential Administration in his letter to the President of the Venice Commission requested the assistance to the Azerbaijani authorities in drafting the Law on Defamation. In its judgment in Fatullayev case the Court also have found the violation of the applicant’s presumption of innocence, National Programme for Action also provides for trainings and workshops to be held to ensure the defendants’ presumption of innocence. To this end, among the measures undertaken, on 23-27 June 2012 a Summer School for judges, defence lawyers and prosecutors from various regions of Azerbaijan was held in by the Office of the Government Agent and the Azerbaijani Lawyers Confederation together with ABA CEELI, GIZ and the OSCE Baku Office. This Summer School has been devoted to the case-law of the European Court of Human Rights, in particular its application of Articles 3, 5, 6, 8, 9, 10 and 11 of the Convention. The Court’s judgments, inter alia, in the Mahmudov and Agazade and Fatullayev cases have been presented and discussed in detail within the lectures concerning Article 6 § 2 and Article 10 of the Convention. The Government will keep the Committee of Ministers informed of further general measures adopted.

2 Case No. 1 (103)-683/2011

JUDGMENT

on behalf of the Republic of Azerbaijan

23 September 2011 Baku City

Collegium on Criminal Cases of the Baku Court of Appeal sitting as a Chamber composed of: Aflatun Gasimov, President and judge-reporter Mirzali Abbasov, Amir Bayramov, judges, Altay Safaraliyev, Secretary,

With participation of Azer Taghiyev, legal representative of the private prosecutor – Ibrahim Mehdiyev and Yagub Murad-zade, a person against whom a complaint in private prosecution order was lodged, as well as Alibala Rzayev, his lawyer,

Having deliberated in public at the building of the Baku Court of Appeal the appeals of Ibrahim Mehdiyev, private prosecutor, Yagub Murad-zade, a person against whom a complaint in private prosecution order was lodged, as well as Alibala Rzayev, his lawyer, lodged with respect to the judgment of the Yasamal District Court of 15 December 2010 which found Yagub Murdzade (born on 13 June 1995 in Mijevan village of Zangilan District of Azerbaijan, citizen of the Republic of Azerbaijan, redactor of “Yeni Gazet +” newspaper on public policy, resided in Baku City, Yasamal District, 558 settlement, 23 A.Alakbarov street, appt. 42) guilty in committing the crimes stipulated in Articles 147.1 and 148 of the Criminal Code of the Republic of Azerbaijan, the court

DETERMENED:

The Yasamal District Court by its judgment of 15 December 2010 found Yagub Muradzade guilty in committing the crimes stipulated in Articles 147.1 and 148 of the Criminal Code of the Republic of Azerbaijan and subsequently fined him respectively on AZN 500 and AZN 1000. According to Article 66.2 of the Criminal Code of the Republic of Azerbaijan the final punishment as a fine in the amount of AZN 1000 was appointed by absorption of less strict punishment to more strict punishment. Taking into account the fact that Yagub Murad-zade executed the judgment after its coming into legal force he was found not guilty with respect to Article 147.2 of the Criminal Code of the Republic of Azerbaijan and, subsequently, was acquitted in accordance with Article 42.1.2 of the Code of Criminal Procedures of the Republic of Azerbaijan.

3

As it is shown in the judgment of the first-instance court of 15 December 2010 on 23 November 2009 Mr. Yagub Murad-zade sent complaints to the President of the Republic of Azerbaijan, Mr. , Head of the Administration of the President of the Republic of Azerbaijan, Mr. Ramiz Mehdiyev, Head of the Department on Legislation and Legal Expertise of the Administration of the President of the Republic of Azerbaijan, Mr. Shahin Aliyev, Assistant to the President of the Republic of Azerbaijan, Mr. Ali Asadov. On 4 December 2009 he sent a complaint to the Yasamal District Executive Authority. On 9 March 2010 he sent complaints to the President of the Republic of Azerbaijan, Mr. Ilham Aliyev, Head of the Administration of the President of the Republic of Azerbaijan, Mr. Ramiz Mehtiyev, Head of the Department on State Surveillance of the Administration of the President of the Republic of Azerbaijan, Mr. Eldar Nuriyev, Commission on Combating Corruption of the Republic of Azerbaijan, Member of the Committee of Human Rights of the Parliament of the Republik of Azerbaijan Mrs. Havva Mammadova, Minister of National Security of the Republic of Azerbaijan, Mr. Eldar Mahmudov, Deputy Minister of National Security, Mr. Habil Asadov, Deputy Minister of National Security, Mr. Ali Shafiyev, Deputy Minister of National Security, Mr. Ali Naghiyev, Prosecutor General of the Republic of Azerbaijan, Mr. Zakir Garalov, First Deputy of the Prosecutor General, Mr. Rustam Usubov, Deputy of the Prosecutor General, Mr. Namig Askarov, Head of the Department on Combating Corruption under the General Prosecutor’s Office, Mr. Kamran Aliyev, and Head of the Department on the Work with complaints of the General Prosecutor’s Office, Mr. Behbud Ismayilov. On 26 April 2010 he sent complaints to the President of the Republic of Azerbaijan, Mr. Ilham Aliyev, Head of the Administration of the President of the Republic of Azerbaijan, Mr. Ramiz Mehtiyev, and Head of the Department on the Coordination of the Regional and Local self-government Authorities of the Administration of the President of the Republic of Azerbaijan, Mr. Zeynal Naghdaliyev. In his above-mentioned complaints he disseminated designedly false information about Mr. Ibrahim Mehdiyev, alleging that the latter is a corrupter, robber and thief. Accordingly, having disseminated the mentioned information he libeled Mr. Ibrahim Mehdiyev and damaged his honor and dignity. Afterwards, in the mentioned complaints he insulted Mr. Ibrahim Mehdiyev and debased his honor and dignity by using insulting words.

In his appeal against the judgment of the Yasamal District Court of 15 December 2010 lodged with the Baku Court of Appeal the private prosecutor, Mr. Ibrahim Mehdiyev, asked the court to quash the judgment of the Yasamal District Court of 15 December 2010 and adopt a new judgment finding Mr. Yagub Murad-zade guilty in committing the crimes stipulated in Articles 147.1, 147.2 and 148 of the Criminal Code of the Republic of Azerbaijan and sentencing him to 3 year and 6 month imprisonment. In substantiation of his appeal he submitted that as it was shown in the case-files lodged in private prosecution order the guilt of Mr. Yagub Murad-zade had been proven by the evidences examined in the course of the court hearings as well as by the opinion on the linguistic forensic examination issued on 20 August 2010. However, the accused person, Mr. Yagub Murad-zade, failed to plead guilty to

4 the charges during the court proceedings. While imposing the penalty the first-instance court failed to take into consideration the circumstances stipulated in article 58.3 of the Criminal Code of the Republic of Azerbaijan. Having used mocking and insulting words in his complaints to the authorities Mr. Yagub Murad-zade libeled him and debased his honor and dignity, thus, damaged his reputation. Mr. Yagub Murad-zade failed to apologize for the crimes committed against him. Moreover, Mr. Yagub Murad-zade submitted during the court hearings that having offended the rule he was right. The fact, that the accused person, Mr. Yagub Murad-zade tried to justify him-self and failed to apologize for the crimes committed, shows that Mr. Yagub Murad-zade is incorrigible and the punishment imposed is unfair, thus, more strict punishment shall be imposed on Mr. Yagub Murad-zade.

In their appeals against the judgment of the Yasamal District Court of 15 December 2010 convicted person, Mr. Yagub Murad-zade, and his lawyer Mr. Alibala Rzayev, asked the appellate court to grant the appeal, quash the judgment of the Yasamal District Court of 15 December 2010 in the part concerning the conviction of Mr. Yagub Murad-zade under Articles 147.1 and 148 of the Criminal Code of the Republic of Azerbaijan and declare him not guilty as well as uphold the mentioned judgment in the other parts. They substantiated their appeal with the fact that private prosecutor failed to demonstrate any evidences which prove that his honor and dignity was debased by public statements, any publications presented to public or information disseminated in mass media. The private prosecutor stated in his complaints that this information was presented in the letters which Mr. Yagub Murad-zade sent to various authorities. Thus, his allegations that Mr. Yagub Murad-zade committed a crime stipulated in Article 147 of the Criminal Code of the Republic of Azerbaijan by sending letters to various authorities are unsubstantiated.

The Baku Court of Appeal by its judgment of 17 February 2011 upheld the judgment of the Yasamal District Court of 15 December 2010 and did not grant the appeals of the private prosecutor as well as the convicted person and his lawyer.

The convicted person, Mr. Yagub Murad-zade, and his lawyer Mr. Alibala Rzayev, lodged the cassation appeals against the judgment of the appellate court.

The Collegium on Criminal case of the Supreme Court of the Republic of Azerbaijan by its judgment of 7 June 2011 granted the cassation appeal, quashed the judgment of the Baku Court of appeal of 17 February 2011 and returned the case to the appellate court for reconsideration.

In the course of the re-examination of the case at the appellate court the representative of the private prosecutor, the accused person and his lawyer lodged their submissions and asked the court to grant their appeals.

5 Having examined the grounds of the appeals of the parties as well as the case materials in its possession the court decided to grant the appeal of the convicted person, Mr. Yagub Murad-zade, and his lawyer, Mr. Alibala Rzayev, quash the judgment of the yasamal District Court of 15 December 2010 in the parts concerning the conviction of Mr. Yagub Murad-zader under Articles 147.1 and 148 of the Criminal Code of the Republic of Azerbaijan and declare him not guilty under these Articles and uphold the first-instance court’s judgment in the other parts. Having examined the appeals of the representative of the private prosecutor, Mr. Azer Taghiyev, and private prosecutor, Mr. Ibrahim Mehdiyev, in which they asked the court to quash the judgment of the Yasamal District Court of 15 December 2010 and adopt a new judgment on finding Mr. Yagub Murad-zade guilty in committing the crimes stipulated in Articles 147.1, 147.2 and 148 of the Criminal Code of the Republic of Azerbaijan, the appellate court decided not to grant the appeal of the private prosecutor, Mr. Ibrahim Mehdiyev, but grant the appeal of convicted person, Mr. Yagub Murad-zade, and his lawyer. Accordingly, in the lack of corpus delicti under Articles 147.1, 147.2 and 148 of the Criminal Code of the Republic of Azerbaijan in the conduct of Mr. Yagub Murad-zade, he shall be declared not guilty with this respect.

Having assessed the conduct of the convicted person, Mr. Yagub Murad-zade, the first- instance court in its judgment of 15 December 2010, considering on the basis of the evidences mentioned above as well as examined in the course of the court hearings, decided that Mr. Yagub Murad-zade sent a numerous complaints to the authorities which consisted of designedly false information about Mr. Ibrahim Mehdiyev as a result he libeled him and damaged his honor and dignity. Afterwards, in the mentioned complaints he insulted Mr. Ibrahim Mehdiyev and debased his honor and dignity by using insulting words. Accordingly, this conduct constitutes corpus delicti under Articles 147.1 and 148 of the Criminal Code of the Republic of Azerbaijan. Moreover, while considering the charges against Mr. Yagub Murad-zade the court did not disclose appearance of corpus delicti under Article 147.2 of the Criminal Code of the Republic of Azerbaijan in the conduct of the convicted person, thus, declared him not guilty under this Article.

The private prosecutor brought charges under Article 147.2 of the Criminal Code of the Republic of Azerbaijan against Mr. Yagub Murad-zade because the latter mentioned him as a corrupter and a briber in his complaints sent to various authorities. Thus, he libeled him by disseminating designedly false information about his alleged participation in committing grave crimes.

The court considered that such information had consisted of the submissions of a general nature and had been unsubstantiated, thus, the court did not disclose appearance of corpus delicti under Article 147.2 of the Criminal Code of the Republic of Azerbaijan.

6 According to Article 42.1.2 of the Code of Criminal Procedures of the Republic of Azerbaijan whether in the course of the hearings the court has not disclosed any appearance of corpus delicti it shall adopt a judgment declaring a person not guilty with respect to the criminal charges brought against him.

Considering the above mentioned the court concluded that Mr. Yagub Murad-zade had not been guilty in committing the crime stipulated in Article 147.2 of the Criminal Code of the Republic of Azerbaijan.

The court noted that the first-instance court’s judgment in the part, which declared Mr. Yagub Murad-zade not guilty in committing the crime stipulated in Article 147.2 of the Criminal Code of the Republic of Azerbaijan and acquitted him on the basis of Article 42.1.2 of the Code of Criminal Procedures of the Republic of Azerbaijan, is in accordance with the factual circumstances of the case and shall be considered lawful. However, the appellate court does not consider lawful and delivered in accordance with the factual circumstances of the case the conclusion of the first-instance court, in which the latter found appearance of corpus delicti of the crimes stipulated in Articles 147.1 and 148 of the Criminal Code of the Republic of Azerbaijan in the conduct Mr. Yagub Murad-zade on sending of numerous complaints to the authorities which consisted of designedly false information about Mr. Ibrahim Mehdiyev, thus, libeling him and damaging his honor and dignity, afterwards, insulting Mr. Ibrahim Mehdiyev in the mentioned complaints and debasing his honor and dignity by using insulting words. Thus, Mr. Yagub Murad-zade shall be also declared not guilty under the mentioned Articles and acquitted with this respect.

Accordingly, the appellate court notes that as it is shown from the materials of the case the fist-instance court delivered its judgment, in which found Mr. Yagub Murad-zade guilty, on the basis of the statement of Mr. Yagub Murad-zade, submissions of the representatives of the private prosecutor, Mr. Zaur Niftaliyev and Mr. Azer Taghiyev as well as the opinion on the linguistic forensic examination issued on 20 August 2010.

In his submissions to the firs-instance court the accused person, Mr. Yagub Murad-zade, did not consider him-self guilty with respect to the criminal charges against him and noted that his complaints against Mr. Ibrahim Mehdiyev sent to various authorities should not be considered as public statements or any publications presented to public or information disseminated in mass media.

According to the opinion of the linguistic forensic examination of 20 August 2010 the existence of information, which debased the honor and dignity of Mr. Ibrahim Mehdiyev as well as damaged his reputation and insulted him, was disclosed in the complaints of Mr. Yagub Murad-zade of 23 November 2009, 4 December 2009, 9 March 2010 and 26 April 2010 lodged with various authorities.

7

While examining the material of the case it becomes clear that Mr. Yagub Murad-zade in his complaints lodged with various authorities mentioned the private prosecutor, Mr. Ibrahim Mehdiyev, as a corrupter, robber and thief.

According to Article 5 of the Criminal Code of the Republic of Azerbaijan devoted to the principle of legality, criminal conduct (action or inaction) as well as the punishment for this conduct and other measures of a criminal-legal nature shall be determined only by the present Code.

According to Article 147.1 of the Criminal Code of the Republic of Azerbaijan the libel is a dissemination of obviously false information which debases the honor and dignity of a person or damages his/her reputation in public statements or any publications presented to public or information disseminated in mass media.

According to Article 148 of the Criminal Code of the Republic of Azerbaijan the insult is a deliberate humiliation of honor and dignity of a person expressed in the indecent form in public statements or any publications presented to public or information disseminated in mass media.

Accordingly, in order to declare a person guilty under Article 147.1 of the Criminal Code of the Republic of Azerbaijan the information which debases the honor and dignity of a person or damages his/her reputation shall be presented in public statements or any publications presented to public or information disseminated in mass media.

However, as it is shown in the case files the information, debased the honor and dignity of Mr. Ibrahim Mehdiyev or damaged his reputation as well as insulted him, was not presented in public statements or any publications presented to public or information disseminated in mass media, but was submitted in the form of complaints which the accused person lodged with various authorities.

Moreover, in order to classify the conduct of any person under Article 148 of the Criminal Code of the Republic of Azerbaijan a deliberate humiliation of honor and dignity of a person expressed in the indecent form shall be occurred in public statements or any publications presented to public or information disseminated in mass media.

However, as it is shown in the case files the information insulted Mr. Ibrahim Mehdiyev, thus, deliberate humiliated his honor and dignity, was not presented in public statements or any publications presented to public or information disseminated in mass media, but was submitted in the form of complaints which the accused person lodged with various authorities.

8

According to Article 124.1 of the Code of Criminal Procedures of the Republic of Azerbaijan Reliable evidence (information, documents, other items) obtained by the court or the parties to criminal proceedings shall be considered as prosecution evidence. The mentioned Article in its relevant part shall be read as follows:

“… Such evidence: 124.1.1. shall be obtained in accordance with the requirements of the Code of Criminal Procedure, without restriction of constitutional human and civil rights and liberties or with restrictions on the grounds of a court decision (on the basis of the investigator‘s decision in the urgent cases described in this Code);

124.1.2. shall be produced in order to show whether or not the act was a criminal one, whether or not the act committed had the ingredients of an offence, whether or not the act was committed by the accused, whether or not he is guilty, and other circumstances essential to determining the charge correctly. …”

According to Article 145.1 of the Code of Criminal Procedures of the Republic of Azerbaijan all evidence shall be assessed as to its relevance, credibility and reliability. The content of all evidence collected for the purposes of prosecution shall be assessed in terms of whether it is sufficient to substantiate the charge.

The court considers that while adopting the judgment of conviction of Mr. Yagub Murad-zade the first-instance court failed to assess the evidences in accordance with the relevant provision of the Code of Criminal Procedures of the Republic of Azerbaijan.

According to Article 21 of the Code of Criminal Procedures of the Republic of Azerbaijan any person suspected of committing an offence shall be found innocent if his guilt is not proven in accordance with this Code and if the court has not delivered a final judgment to that effect. Even if there are reasonable suspicions as to the guilt of the person, this shall not cause the latter to be found guilty. The accused (the suspect) shall receive the benefit of any doubts which cannot be removed in the process of proving the charge in accordance with the provisions of this Code, within the appropriate legal proceedings. He shall likewise receive the benefit of any doubts which are not removed in the application of criminal law and criminal procedure legislation. The accused shall not be obliged to prove his innocence. It shall be for the prosecution to prove the charge or to refute the evidence given in defense of the suspect or the accused.

According to Article 28.5 of the Code of Criminal Procedures of the Republic of Azerbaijan the court decision regarding the guilt of the person charged may not be based on opinion but shall be supported by all the reliable evidence concerning the case.

9

According to Article 349.3 of the Code of Criminal Procedures of the Republic of Azerbaijan the court judgment shall be lawful and well-founded.

According to Article 349.5.1 of the Code of Criminal Procedures of the Republic of Azerbaijan the court judgment shall be considered well-founded if the conclusions at which the court arrives are based only on the evidence examined during the court’s investigation of the case.

According to paragraph 7 of Article 125 of the Constitution of the Republic of Azerbaijan the court proceeding shall ensure the determination of the truth.

According to Article 21.3 of the Code of Criminal Procedures of the Republic of Azerbaijan the accused shall not be obliged to prove his innocence. It shall be for the prosecution to prove the charge or to refute the evidence given in defense of the suspect or the accused.

According to Article 145.3 of the Code of Criminal Procedures of the Republic of Azerbaijan If suspicions which emerge during the process of proving the charge cannot be removed by other evidence, they shall be interpreted in favor of the suspect or accused.

Concluding the above-mentioned the court consider that due to the fact that there is not corpus delicti of the crimes stipulated in Articles 147.1 and 148 of the Criminal Code of the Republic of Azerbaijan in the conduct Mr. Yagub Murad-zade, thus, he shall be declared not guilty with respect to the above-mentioned crimes.

The court consider that in accordance with Article 198.5 of the Code of Criminal Procedures of the Republic of Azerbaijan the private prosecutor Mr. Ibrahim Mammadov shall pay the expenses in the amount of AZN 200 with respect to the linguistic examination provided in the course of the proceedings. This sum shall be transferred to the State budget.

For these reasons and in accordance with Articles 347, 349, 350, 352, 353 and 356 of the Code of Criminal Procedures of the Republic of Azerbaijan, the court

DECIDED:

The complaints of Mr. Yagub Murad-zade and his lawyer, Mr. Alibala Rzayev, shall be granted.

The judgment of the Yasamal District Court of 15 December 2010 with respect to Mr. Yagub Murad-zade shall be quashed.

10 Mr. Yagub Murad-zade shall be acquitted due to the lack of corpus delicti of the crimes stipulated in Articles 147.1, 147.2 and 148 of the Criminal Code of the Republic of Azerbaijan in his conduct.

The private prosecutor Mr. Ibrahim Mammadov shall pay the expenses in the amount of AZN 200 with respect to the linguistic examination provided in the course of the proceedings. This sum shall be transferred to the State budget.

The judgment shall enter into legal force upon its adoption.

The parties shall be entitled to lodge cassation appeal or cassation protest with the Supreme Court of the Republic of Azerbaijan against this judgment.

President of the Chamber (signature)

Judges (signatures)

Judge Aflatun Gasimov

11

ON BEHALF OF THE REPUBLIC OF AZERBAIJAN

JUDGMENT

NARIMANOV DISTRICT COURT

Narimanov District Court, composed of: Turgay Huseynov, Chairman, With the participation of: Azer Rzayev, Registrar, Vaqif Huseyn, legal representative of the private prosecutor, Elshad Mammadov, legal representative of the private prosecutor, Osman Kazimov, lawyer of the private prosecutor, Gafar Jafarov, lawyer of Faramaz Allahverdiyev, the person, against whom the application was lodged,

Having deliberated on 25 November 2010 at the premises of the Narimanov District Court in the city of Baku the case on the accusation of:

Faramaz Allahverdiyev, born on 18 November 1965 in the district of Sharur of the Autonomous Republic, citizen of the Republic of Azerbaijan, married, with high education, advisor to the editor-in-chief of the “Millatim” newspaper, living in ap. 66, h.48, G.Garayev avenue, Nizami District, city of Baku

In the procedure of private prosecution under Articles 147.1 and 148 of the Criminal Code of the Republic of Azerbaijan,

D E T E R M I N E D:

Private prosecutor Rauf Abbasov lodged an application with the court against the advisor to the editor-in-chief of the “Millatim” newspaper Faramaz Allahverdiyev in the procedure of private prosecution requesting the court to institute criminal proceedings against him and convict under Articles 147.1 and 148 of the Criminal Code of the Republic of Azerbaijan. As it follows from the application lodged in the procedure of private prosecution, in the article “Dignity of Arif oghlu” published in the issues 22 (063) dated 10-16 June 2010 and 25

12 (066) dated 1-7 July 2010 of the “Millatim” newspaper Faramaz Allahverdiyev used the expressions damaging Rauf Abbasov’s business reputation, degrading his honor and dignity. Defending the application lodged in the procedure of private prosecution the representatives of the private prosecutor Vaqif Huseyn and Elshad Mammadov submitted at the court proceedings that the “Millatim” newspaper has been pursuing the insulting campaign against the editor-in-chief of the “Yeni ” newspaper Rauf Abbasov, his family, as well as the staff of the “Yeni Musavat” newspaper for several times acting beyond the ethics and using indecent words. In particular, in a number of articles wrote by Faramaz Allahverdiyev, advisor to the editor-in-chief Rauf Abbasov and his close relatives have been insulted disgustingly. The “Millatim” newspaper and Faramaz Allahverdiyev do not even abstain from abuses. While looking through the newspaper it can be seen how easily the newspaper uses the slang that one cannot express among the family members. The views expressed by Faramaz Allahverdiyev in the article “Dignity of Arif oghlu” published in the issues 22 (063) dated 10-16 June 2010 and 25 (066) dated 1-7 July 2010 of the “Millatim” newspaper were false information directed to soil Rauf Abbasov’s honor and dignity, deliberately degrade him in an indecent form, insult him and therefore, should be estimated as slanderous deed. Being published in the mass media output - “Millatim” newspaper – this information strikes a blow on his reputation, public, professional and creative position, as well as inflicts moral damage on him by formation a very negative opinion about Rauf Abbasov. In accordance with Article 46 of the Constitution of the Republic of Azerbaijan every person has a right to protect his honor and dignity. The person’s dignity is protected by the state. No ground can serve as an excuse for degrading of person’s dignity. In accordance with Article 10 of the Law on Mass Media “publishing of rumors, false and biased articles, pornographic materials degrading honor and dignity of the citizens making reference to a reliable source, libeling or using the mass media for the purpose of committing other illegal acts are strictly forbidden”. In accordance with Article 60 of the Law on “Mass media” the editorship (senior editor) and journalists (author) of the mass media output bear civil, administrative, criminal and other form of responsibility according to the legislation of the Republic of Azerbaijan for interference with the private lives of the citizens. In accordance with the paragraph 3 of the decision №7 of the Plenum of the Supreme Court of the Republic of Azerbaijan on “The court practice on application of the legislation with regard to the protection of honor and dignity” dated 14 May 1999, if the information leads to the formation of a negative opinion about the society, staff or particular persons in connection with the moral principles, economic activity, service or public activity, it shall be regarded as the information soiling honor and dignity. Therefore, they requested the court to deliver a judgment on institution of criminal proceedings against the advisor to the editor-in-chief of the “Millatim” newspaper Faramaz Allahverdiyev and his punishment.

13 Faramaz Allahverdiyev, against whom the application is lodged did not plead guilty at the court proceedings, did not admit the allegations against him and submitted that in the articles published in the issues 22 (063) dated 10-16 June 2010 and 25 (066) dated 1-7 July 2010 of the “Millatim” newspaper he did not refer to the information directly degrading Rauf Abbasov’s honor and dignity, damaging his business reputation. He also submitted that he regretted for the views expressed in his articles and requested the court to dismiss the application lodged in the procedure of private prosecution. Examining the materials of the case, taking into account the testimonies of the representatives of the private prosecutor and the person, against whom the application was lodged, the court comes to a conclusion that the fact that Faramaz Allahverdiyev did not plead guilty should be considered as a self-defense and its aim is to escape the responsibility. The evidences on the case and the opinion of the judicial-linguistic expertise comprehensively prove that Faramaz Allahverdiyev has committed the criminal deed envisaged in Articles 147.1 and 148 of the Criminal Code of the Republic of Azerbaijan. As it follows from the judicial-linguistic opinion № 11329 of the judicial-linguistic expertise dated 6 September 2010 the articles titled “Dignity of Rauf Arif oghlu”, which was published in the issues 22 and 25 of the “Millatim” newspaper dated respectively 10-16 June and 1-7 July 2010 encompass the information overshadowing Rauf Abbasov’s reputation, decreasing trust on him, degrading his public reputation, as well as honor and dignity. Once the information that R.Abbasov dishonored his close relative, became traitor of the special services, obliged slut editor to publish insults about other person and committed other negative deeds and acts is found to be rumor, false and blackmail, it can be regarded as information deliberately degrading R.Abbasov’s honor and dignity. The court finds that F.Allahverdiyev deliberately disseminated the false information in the mass media and as a result soiled Rauf Abbasov’s honor and dignity. His actions were directed towards damaging R.Abbasov’s reputation. The court submits that every person has a right to protect his honor and dignity, no circumstance can excuse degrading of a person’s dignity. Honor, dignity and reputation of a person are the motions closely linked to one-another and therefore, are protected by the state. The protection of honor, dignity and reputation is envisaged in the criminal legislation, as well as in a number of international treaties acceded to by the Republic of Azerbaijan, including in the UN Universal Declaration of Human Rights. In the meantime, at the court proceedings it was found out that Faramaz Allahverdiyev had been found guilty under Article 147.2 of the Criminal Code of the Republic of Azerbaijan in accordance with the judgment of the Nizami District Court of 22 July 2009 and sentenced to three months of imprisonment, on 8 October 2009 the Baku Court of Appeal upheld the

14 judgment of the Nizami District Court of 22 July 2009, the commencement of the term of imprisonment was calculated since 8 October 2009 and he was released when the term of imprisonment lapsed, however his conviction was not removed from the records. As it follows from the order in the case-file Faramaz Allahverdiyev was found guilty under Article 147.2 of the Criminal Code of the Republic of Azerbaijan in accordance with the judgment of the Nizami District Court of 22 July 2009, sentenced to three months of imprisonment and released after the lapse of the term of imprisonment. In accordance with Article 18.1 of the Criminal Code of the Republic of Azerbaijan if a person previously convicted for committing deliberately a crime commits deliberately a new crime, it will be considered recidivism of a crime. The court comes to a conclusion that Faramaz Allahverdiyev’s deed shall be qualified under Articles 147.1 and 148 of the Criminal Code of the Republic of Azerbaijan, he shall be found guilty under those articles and punished. Imposing a punishment with regard to F.Allahverdiyev the court takes into account the principles of justice and restoration of social justice, the character and degree of danger for the public of the committed crime, the personality of the accused, as well as the circumstances aggravating and mitigating the punishment, the objective of the imposed punishment to prevent the committing of new crimes by the convicted person or others, the effect of the imposed punishment to the correction of the persons and living conditions of his family in accordance with Articles 8, 41.2 and 58.3 of the Criminal Code of the Republic of Azerbaijan. The court notes that the existence of under aged child under F.Allahverdiyev’s protection and sincere repentance shall be regarded as the circumstances mitigating the punishment, whereas the recidivism of the crime as aggravating circumstance. Considering the issue of punishment with respect to Faramaz Allahverdiyev the court finds that imposing the punishment envisaged in Articles 147.1 and 148 of the Criminal Code of the Republic of Azerbaijan shall be lawful, reasonable and just. However, the court considers expedient to impose a punishment taking the mitigating circumstances of Faramaz Allahverdiyev’s punishment as the exceptional ones and without taking into account the recidivism. In accordance with Article 65.3 of the Criminal Code of the Republic of Azerbaijan if the previous conviction of a person is indicated as a qualifying element in the Special Part of this Code, as well as if there exist the exceptional circumstances set forth in Article 62 of the Code, a punishment for recidivism, dangerous recidivism and especially dangerous recidivism shall be imposed without the application of the rules envisaged in Article 65.2 of the Code.

15 The punishments imposed in accordance with Article 66.2 of the Criminal Code of the Republic of Azerbaijan shall be added and the final punishment shall be fixed. 250 (two hundred and fifty) manats shall be withheld from Faramaz Allahverdiyev as the expenses for the expertise and transferred to the budget of the Republic of Azerbaijan. In the view of the afore-said and guided by Articles 345-349, 351-353, 356, 358, 381, 383-384 of the Code of Criminal Procedure of the Republic of Azerbaijan, the court

D E C I D E D:

Faramaz Allahverdiyev shall be found guilty under Article 147.1 of the Criminal Code of the Republic of Azerbaijan and pay a fine in the amount of 500 (five hundred) manats; under Article 148 of the Criminal Code of the Republic of Azerbaijan and pay a fine in the amount of 1000 (one thousand) manats. In accordance with Article 66.2 of the Criminal Code of the Republic of Azerbaijan the punishments shall be added and F.Allahverdiyev shall pay a fine in the amount of 1500 (one thousand five hundred) manats. 250 (two hundred and fifty) manats shall be withheld from Faramaz Allahverdiyev as the expenses for the expertise and transferred to the budget of the Republic of Azerbaijan. In accordance with Articles 358-384 of the Code of Criminal Procedure of the Republic of Azerbaijan an appeal against this judgment can be lodged with the Baku Court of Appeal within 20 days. Once within 20 days no appeal is lodged the judgment shall come into force.

Chairman: Turgay Huseynov

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