The courts have penalized the journalists who are demonstrating the truth about the organization of “elections” in Azerbaijan
Sevinj Vaqifqizi
Analysis of violation of law during Sevinj Vaqifqizi ‘s judicial proceedings
The Baku Court of Appeal Civil Collegium
Case № 2(103)-14193/2019
25 November 2019
Presiding judge: Etibar Nabiyev
Judges: Rahib Qurbanov, Aida Huseyn
Plaintiff: Elmira Alandarova
The plaintiff’s representative and attorney: Shahaddin Djanmammadov
Defendant: Sevinj Abbasova (Vaqifqizi)
The defendant’s representative and attorney: Zibeyda Sadigova
The Presidential elections were held in Azerbaijan on 11 April 2018. The journalist Sevinj Abbasova (known as Sevinj Vaqifqizi) made a two-minute video reportage covering the elections at the polling stations 14, 15 and 16, which were located at school #251. It was published under the title “Elections 2018: The Deputy Director who controls the “carousel” of the elections” on the Internet portal Meydan TV. It had been available and seen by 35,479 viewers in a period of 2 months on Youtube from 13 April 2018.The video shows the school Deputy Director, Elmira Alandarova, who is arranging some groups of several people in order to lead them to the polling stations. The Deputy headmaster is walking around the polls, not being either a member of election commissions or an observer. The journalist Sevinj Vaqifqizi poses a question to E. Alandarova about the people she brings and leads to the polling stations at school, to which the Deputy director objects, “No, I take them out. Don’t you see, I’m taking them out.”
A year has passed and, in the summer of 2019, the school’ s Deputy Director Elmira Alandarova filed a lawsuit against the journalist Sevinj Vaqifqizi. The plaintiff claimed that the video posted on Youtube was untruthful and asked the court to oblige the defendant to remove the video, bring her apologies, and pay a compensation of 2,500 Manats for moral damages.
The journalist’s attorney Zibeyda Sadigova petitioned the court to request the Central Election Commission to provide video footage from the polling stations 14, 15 and 16, located at school # 251. The attorney insisted that the footage would prove what had been shown in the journalist’s video coverage.
The hearings took place in the Baku city Binagadi District Court. Zibeyda Sadigova explained that Alandarova’s lawsuit hadn’t been substantiated since there were no law violations in the actions of her client, “Sevinj Vaqifqizi was legally filming at the polling stations. The law permits it. The CEC announced that journalists were entitled to work at the election showing their service ID cards without any additional accreditation. There was no signs of insult to plaintiff’s honour and dignity in the video content. The term “merry-go-round (carousel)” was not a swear word, it has been used in the international organizations reports. The video did not contain any voice-over text or comment”.
The judge did not grant the lawyer’s request addressed to the Central Election Commission in order to obtain the video surveillance footage at the polling stations.
On 5 August 2019, the Baku Binagadi District Court issued a decision in the case, according to which the claims were partially fulfilled. The Court ruled that the video recorded by the journalist was not accurate, since the defendant had failed to prove the truth of the video, so the video should be removed and the defendant should apologize to the plaintiff.
Both parties, having disagreed with the first instance court decision issued on 5 August 2019, filed appeals.
On 25 November 2019, the Baku Court of Appeal’s Civil Collegium issued a verdict to partially satisfy the appeal of the plaintiff and reject the defendant’s appeal. Thus, the court’s decision stipulated removal of the videotape from the Internet, obliged Sevinj Vaqifqizi to bring apologies to the plaintiff, and pay her a compensation in the amount of 1,000 Manat for damaging Alandarova‘s honour and dignity.
Commentary by an expert lawyer:
The court decision is illegal and unjustified. According to the Article 24 of Constitution of Azerbaijan Republic, main principle of rights and liberties of a person and citizen is that everyone, from the moment when they are born possesses inviolable and inalienable rights and liberties. The Article 47 of Constitution of Azerbaijan Republic states:
- Everyone may enjoy freedom of thought and speech.
- Nobody should be forced to promulgate his/her thoughts and convictions or to renounce his/her thoughts and convictions.
The Law of the Republic of Azerbaijan, the Article 8 “On Mass Media” states that mass media have the right to receive a prompt and reliable information on economic, political, public and social situation in the society, the activities of the state bodies, municipalities, institutions, enterprises, organizations, public associations, political parties, and the officials. This right is not restricted, except the cases specified in the legislation of the Azerbaijan Republic.
In accordance to the article 2 of the Act of the Azerbaijan Republic “On freedom of obtaining information”:
2.1. There is freedom of obtaining information in the Azerbaijan Republic.
2.2. Everyone has the right, either independently or with the help of his or her representative, to address the owner of information, and choose the type of information as well as the method of obtaining it.
One of the main principles of obtaining information is the legality of the receiving procedure. Sevinj Vaqifqizi is a professional journalist, she videotaped what had happened at the polling stations and delivered that information to the public. The legitimacy of obtaining the information by the journalist is beyond any doubt.
The court decision violated not only the Norms of National law, but also the Norms of the International Law, the norms that regulate freedom of speech, which directly apply to the journalists. Thus, the Article 10(1) of the European Convention for the Protection of Human Rights and Fundamental Freedoms states, “Everyone has the right to freely express his/her own opinion. This right shall include freedom to hold opinions, receive and impart information and ideas without interference by public authorities and regardless the State borders”.
The European Court of Human Rights (ECHR) judgment in the case of Autronic AG v. Switzerland issued on May 22, 1990, states that the Article 10 of the European Convention for the Protection of Human Rights and Fundamental Freedoms “applies not only to the content of information, but also to the means of its transmission or reception, since any restriction imposed on the means of transmission or reception would constitute interference with the right to receive and impart the information”. (Paragraph 47) – https://hudoc.echr.coe.int/eng#{“itemid”:[“001-57630”]}
The European Court of Human Rights (ECHR) judgment in the case of Informationsverein Lentia and Others v. Austria issued on 24 November 1993, states, “Freedom of expression plays a fundamental role in a democratic society when it serves, by means of the press, to transmit to the public the information and ideas of general interest which the public is entitled to obtain (…). This role cannot be successfully fulfilled without pluralism, the ultimate guarantor of which is the State. This is particularly true for audiovisual media that have a wide public audience” ( Paragraph 38) – https://hudoc.echr.coe.int/eng#{“itemid”:[“001-57854”]}
Based on the decisions of the European Court of Human Rights, we have learned that the role of journalists in society is very important and their professional duty is to be active in collecting and distributing the information. Sevinj Vaqifqizi recorded video from the polling stations on the day of presidential elections in Azerbaijan, and the public had the right to be informed about the election process.
- Alandarova’s claim for an apology from the part of the journalist S. Vaqifqizi absolutely contradicts the Article 10(1) of the European Convention for the Protection of Human Rights and Fundamental Freedoms, as it states that the right to freedom of speech includes freedom to hold one’ opinion. It is known that during the trial in the first instance court the journalist repeatedly affirmed that her information had been authentic, since she filmed what she had seen with her own eyes, and she should not apologize for it. Sevinj Vaqifqizi confidently stated that E. Alandarova had indeed participated in the organization of the so-called “carousel” in the presidential elections of the 11th of April 2018.
The Court of Appeal’s decision obliged Sevinj Vaqifqizi to deliver her apologies to E. Alandarova. Therefore, the court forced to change the journalist’s opinion, which, according to the constitutional and convention norms, was unacceptable in terms of the freedom of speech.
According to the Article 23.2 of the Civil Code of the Azerbaijan Republic (CC AR) , “if the information discrediting honor, dignity or business reputation of an individual or affecting his personal or family life is spread in mass media, it is to be refuted in the same mass media”.
According to the Article 23.4 of the Civil Code of the Azerbaijan Republic, “An individual, who has been exposed to the information that discredits his honour, dignity or business reputation, has the right to demand a compensation for the harm caused by the dissemination of such information in addition to refuting it.”
As can be seen from the above articles, in such cases, the law stipulates only refutation and compensation. The law does not prescribe that a defendant should apologize in such cases. At the same time, in the course of the trial it has not been proved that the information released by the journalist Sevinj Vaqifqizi didn’t reflect the reality.
Therefore, the judgment of the Court of Appeal does not comply either with the National law Norms, or with the Article 10(1) of the European Convention for the Protection of Human Rights and Fundamental Freedoms, or with the precedents of the European Court of Human Rights.