FIRST SECTION
CASE OF ABBASALIYEVA v. AZERBAIJAN
(Application no. 6950/13)
 
 
 
JUDGMENT
Art 8 • Positive obligations • Private life • Failure by domestic courts to protect the applicant’s reputation in civil proceedings against a newspaper for publication of articles containing disparaging statements about her appointment as a hospital’s head physician • Balancing exercise between competing interests at stake not in conformity with criteria laid down in the Court’s case-law
 
STRASBOURG
27 April 2023
 
FINAL
 
27/07/2023
 
This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Abbasaliyeva v. Azerbaijan,
The European Court of Human Rights (First Section), sitting as a Chamber composed of:
 Marko Bošnjak, President,
 Péter Paczolay,
 Krzysztof Wojtyczek,
 Alena Poláčková,
 Lətif Hüseynov,
 Gilberto Felici,
 Erik Wennerström, judges,
and Renata Degener, Section Registrar,
Having regard to:
the application (no. 6950/13) against the Republic of Azerbaijan lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by an Azerbaijani national, Ms Shahla Samad gizi Abbasaliyeva (Şəhla Səməd qızı Abbasəliyeva – “the applicant”), on 14 January 2013;
the decision to give notice to the Azerbaijani Government (“the Government”) of the application;
the parties’ observations;
Having deliberated in private on 21 March 2023,
Delivers the following judgment, which was adopted on that date:
INTRODUCTION
1. The application mainly concerns the applicant’s complaint about the domestic courts’ failure to protect her right to her reputation and raises issues mainly under Article 8 of the Convention. THE FACTS
2. The applicant was born in 1959 and lives in Gazakh. She was represented by Mr E. Sadigov, a lawyer based in Azerbaijan. 3. The Government were represented by their Agent, Mr Ç. Əsgərov. 4. The facts of the case may be summarised as follows. Background
5. The applicant’s brother, Elchin Amiraslanov, was the head of the Gazakh regional office of OMON, a special police force established within the Ministry of Internal Affairs of the Azerbaijan Soviet Socialist Republic in 1990. He was arrested and prosecuted in relation to the attempted coup d’état in March 1995. He was sentenced to death but, following the abolition of capital punishment in Azerbaijan in 1998, his sentence was commuted to one of life imprisonment, which he is serving to date. 6. By an order of the head physician of the Gazakh District Central Hospital dated 19 August 2011, the applicant was appointed the head physician of that hospital’s outpatient clinic. The disputed articles
7. Following the applicant’s appointment as head physician, several articles about her were published in the Gündəlik Bakı newspaper between 23 August and 10 September 2011. The first article was published under the title “Relatives of the government’s enemies appointed to posts” (Hakimiyyətin düşmənlərinin qohumları vəzifəyə təyin edilir) with the subtitle “The sister of an OMON member has become Gazakh’s head physician. Shahla Amiraslanova is the sister of Elchin Amiraslanov, who participated in the coup d’état” (OMON-çunun bacısı Qazaxın baş həkimi oldu. Şəhla Əmiraslanova dövlət çevrilişində iştirak edən Elçin Əmiraslanovun bacısıdır). The article started with some general statements about the appointment to various posts of persons who had previously opposed the State, as well as their relatives. It then mentioned the OMON events and went on to question the applicant’s appointment to the post of head physician. The relevant parts read as follows:
“... When Elchin Amiraslanov was imprisoned, many of his relatives, including his sister Shahla Amiraslanova started to ... express her protest in the most severe form ... our goal is not to remind people how Shahla Amiraslanova went against the State authorities. The issue is that the same Shahla Amiraslanova was appointed head physician of the outpatient clinic of the Gazakh District Central [Hospital] yesterday. The brother’s name is mentioned ... in relation to a crime ... the sister is appointed head physician. It is an interesting contradiction, a real paradox ...
... [D]ear residents of Gazakh! Elchin Amiraslanov’s sister Shahla Amiraslanova will ‘serve’ you. Many of you know the Gazakh commander of OMON well. For those who do not know Shahla Amiraslanova, a reminder once again: this is the same Shahla Amiraslanova who maligned (daşa basırdı) the State authorities when Elchin Amiraslanov was detained. Interesting, could [the Health Minister] O.S. not find another person to appoint to the post of head physician ...? Maybe he is not aware of this matter? According to the information that we received, eight persons came forward as candidates for the post ... S.H., ..., an experienced doctor, was also among them. It is surprising that Elchin Amiraslanov’s sister Shahla Amiraslanova has been appointed head physician when there was such a candidate. How does it happen that Shahla Amiraslanova is appointed when there are eight candidates for that post? No doubt that the greatest responsibility in this matter falls on R.H., the head of the Gazakh District Executive Authority...What happened to traditions of statehood? ... [A]ccording to what criteria did Shahla Amiraslanova, sister of Elchin Amiraslanov who was accused of attempting a coup d’état and whose participation in it has been proved, ‘excel’ in comparison with the other candidates for the post of head physician ... ? Thanks to what qualities does Shahla Amiraslanova deserve this post?
... It appears that many have forgotten or ‘have been made to forget’ Shahla Amiraslanova’s actions in defence of her brother Elchin Amiraslanov, who was ... convicted in connection with ... the OMON events ... In any case, given there were a sufficient number of deserving (layiqli) candidates ... Shahla Amiraslanova’s appointment shows certain persons’ perfunctory attitude towards ... the protection of State interests. It appears that the Health Minister O.S. is not aware of this matter.”
8. The second article was entitled “Do R.H. and O.S. take care of OMON members?” (R.H.-la O.Ş. OMON-çulara qayğı göstərir?) and had the subtitle “Why has Elchin Amiraslanov’s sister Shahla Amiraslanova been appointed to the post of head physician?” The article contained similar text to the previous one. Some other parts read as follows:
“... [The] sister of an OMON member ... works as head physician. ... Health Minister O.S. has approved the order [for the appointment]. The request (təqdimat) was made by ... R.H. ...
... by bringing Shahla Amiraslanova to this post R.H. has undermined State interests ...”
9. The third article was entitled “One of the twins serves the State, the other the coup d’état”, had the subtitle “Shahla Amiraslanova is OMON member’s twin sister” and contained similar text to the previous two articles. 10. The fourth article was entitled “Undesirable fact in the Ministry of Health. Sister of OMON member is in office. Shahla Amiraslanova performs her duties”. The author of the article noted that “abnormal events” had occurred in the health system after O.S.’s appointment as the Minister. As an example, the author described the case of K.V., a doctor against whom criminal proceedings for abuse of power had been instituted, and noted that K.V. was now free and working as the deputy director of the Drugs Centre. The author then brought up the applicant’s appointment as a second example, using similar expressions and opinions to those appearing in the previous articles. 11. According to the applicant, following the publication of the above‑mentioned articles, on 12 September 2011 R.H., the head of the Gazakh District Executive Authority, asked her to write a letter of resignation, which she refused to do. 12. On the same day the applicant was dismissed from the post of head physician and returned to her previous post of physician (həkim-terapevt). The applicant’s action against her employer
13. On 19 September 2011 the applicant brought proceedings against her employer, asking for reinstatement to the post of head physician and payment of compensation for lost earnings. 14. On 18 November 2011 the Gazakh District Court dismissed the applicant’s claims, finding that labour legislation requirements had been breached when she had been appointed head physician. In particular, it held that no written contract had been concluded with the applicant and that the post of head physician did not exist in the hospital’s staff schedule. 15. By judgments of 15 February 2012 and 13 July 2012 the Ganja Court of Appeal and the Supreme Court respectively dismissed the applicant’s appeals. The applicant’s civil action against the newspaper
16. It appears that on 16 September 2011 the applicant asked the editor‑in‑chief of Gündəlik Bakı to issue a retraction, which he refused to do. Following that, on an unspecified date in October 2011 the applicant brought proceedings against him and the authors of the articles. She asked for a retraction and an apology addressed to her and her family members and compensation for pecuniary and non-pecuniary damage. She submitted, among other things, that she had been using the last name “Abbasaliyeva” for the last twenty-six years, following her marriage. 17. On 8 February 2012 the Yasamal District Court dismissed the applicant’s claims (no copy of the judgment is available in the case file). 18. The applicant lodged an appeal (no copy is available in the case file), complaining that the first-instance court had failed to examine the circumstances of the case and that it was apparent from the articles and the frequent mention that she was Elchin Amiraslanov’s sister that the authors’ sole purpose was to attack her. 19. On 25 May 2012 the Baku Court of Appeal upheld the lower court’s judgment. It held that the following were facts:
(i) the applicant’s maiden name was Amiraslanova;
(ii) Elchin Amiraslanov was her brother and had been convicted of an offence; and
(iii) she had been appointed to the post of head physician and later dismissed from that post. It further held that opinions expressed in the articles about the applicant and her brother and her appointment to a new post were value judgments with a sufficient factual basis, without noting specifically which opinions. It noted that those value judgments were protected by the defendants’ right to freedom of expression and the right to criticise the work of public officials, including doctors, and that therefore the defendants did not bear any civil liability for expressing those judgments. The court also held that public officials, including doctors, should be more tolerant of criticism compared with others. 20. On 13 August 2012 the applicant lodged a cassation appeal. She submitted that the appellate court had failed to consider that the defendants had abused their right to freedom of expression, resulting in a violation of her right to respect for her private life. The applicant argued that the disputed articles had sought to exaggerate the applicant’s appointment and to present it as treason by the State officials who had approved her appointment, because of her brother’s conviction. She further submitted that she had been dismissed from her post following the publication of those articles. 21. On 2 October 2012 the Supreme Court dismissed the applicant’s cassation appeal, reiterating the appellate court’s reasoning. RELEVANT LEGAL FRAMEWORK
22. The relevant provisions of domestic law were summarised in Khadija Ismayilova v. Azerbaijan ((no. 3), no. 35283/14, §§ 24-28, 7 May 2020). THE LAW
ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION CONCERNING THE APPLICANT’S RIGHT TO her REPUTATION
23. The applicant complained that the domestic courts’ failure to grant her claims against the newspaper had breached her right to her reputation as guaranteed by Article 8 of the Convention, which reads as follows:
“1. Everyone has the right to respect for his private and family life, his home and his correspondence. 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”
Admissibility
24. In the present case, the publications, including their headings, contained disparaging statements about the applicant (contrast Vučina v. Croatia (dec.), no. 58955/13, § 38, 24 September 2019). They stated that the applicant did not deserve to be appointed to the post of head physician because of the conviction of her brother, who was portrayed as an enemy of the State, and her alleged reaction to his imprisonment (see paragraphs 7-10 above). 25. The Court reiterates that the right to protection of reputation is a right which is protected by Article 8 of the Convention as part of the right to respect for private life. In order for Article 8 to come into play, an attack on a person’s reputation must attain a certain level of seriousness and in a manner causing prejudice to personal enjoyment of the right to respect for private life (see Axel Springer AG v. Germany [GC], no. 39954/08, § 83, 7 February 2012). This requirement covers social reputation in general as well as professional reputation in particular (see Denisov v. Ukraine [GC], no. 76639/11, § 112, 25 September 2018). The Court considers that the statements made in the disputed articles affected the applicant’s private life to such a degree as to engage Article 8 of the Convention. That provision is therefore applicable to the circumstances arising in the present case. 26. The Court notes that this complaint is neither manifestly ill-founded nor inadmissible on any other grounds listed in Article 35 of the Convention. It must therefore be declared admissible. MeritsThe parties’ submissions

27. The applicant argued that the articles had been written in bad faith and with the intention of persecuting her solely because of her brother’s conviction. She further argued that the domestic courts dismissed her claims against the newspaper for the same reason. 28. The Government did not submit any particular arguments in respect of this complaint.

Article of the Convention at issue: Article 8
Outcome: violation