THIRD SECTION
CASE OF KHADIJA ISMAYILOVA v. AZERBAIJAN (No. 4)
(Applications nos. 71556/16 and 74112/17)
 
JUDGMENT
 
Art 7 • Nullum crimen sine lege • Nulla poena sine lege • Applicant’s conviction for illegal entrepreneurship for her work as a freelance journalist with foreign media without accreditation with the Ministry of Foreign Affairs • Relevant legislative provisions extensively and unforeseeably construed to the applicant’s detriment, in a manner which did not constitute a development consistent with the essence of that offence • Application of domestic law in such an arbitrary manner unforeseeable
Art 6 § 1 (criminal) • Fair hearing • Applicant’s conviction for illegal entrepreneurship and tax evasion arbitrary • Domestic courts’ decisions fundamentally flawed and manifestly arbitrary • Fairness of criminal proceedings undermined in such a fundamental way that other criminal procedure guarantees rendered irrelevant
Art 10 • Freedom of expression • Not shown that the criminal proceedings against the applicant and convictions bore no relation to her journalistic activities • Impugned interference unlawful, grossly arbitrary, incompatible with rule of law principle and did not pursue any legitimate aim
Art 18 (+ Art 10) • Restriction for unauthorised purposes • Criminal proceedings brought against well-known investigative journalist and civil society activist to silence and to punish her for her journalistic activities
 
Prepared by the Registry. Does not bind the Court. STRASBOURG
27 January 2026
 
FINAL
 
27/04/2026
 
This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Khadija Ismayilova v. Azerbaijan (no. 4),
The European Court of Human Rights (Third Section), sitting as a Chamber composed of:
 Ioannis Ktistakis, President,
 Lətif Hüseynov,
 Darian Pavli,
 Úna Ní Raifeartaigh,
 Mateja Đurović,
 Canòlic Mingorance Cairat,
 Vasilka Sancin, judges,
and Milan Blaško, Section Registrar,
Having regard to:
the applications (nos. 71556/16 and 74112/17) 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 Khadija Rovshan gizi Ismayilova (Xədicə Rövşən qızı İsmayılova – “the applicant”), on the dates indicated in the appended table;
the decision to give notice to the Azerbaijani Government (“the Government”) of the complaints under Article 6 §§ 1 and 3 (b), (c) and (d) and Articles 7, 10 and 18 of the Convention and to declare the remainder of application no. 71556/16 inadmissible;
the parties’ observations;
Having deliberated in private on 30 September and 9 December 2025,
Delivers the following judgment, which was adopted on the last‑mentioned date:
INTRODUCTION
1. The applications concern the alleged unfairness of the criminal proceedings against the applicant and the alleged breach of her right not to be convicted on account of acts which did not constitute the criminal offence of illegal entrepreneurship under domestic law. The applicant also complained that her prosecution and conviction had amounted to a restriction of her right to freedom of expression, which had been applied for a purpose other than those prescribed by the Convention. The applicant relied on Articles 6, 7, 10 and 18 of the Convention. THE FACTS
2. The applicant was born in 1976 and lives in Baku. She was represented by Mr P. Hughes and Mr F. Namazli, lawyers based in London and Azerbaijan respectively. 3. The Government were represented by their Agent, Mr Ç. Əsgərov. 4. The facts of the case may be summarised as follows. BACKGROUND AND CRIMINAL CHARGES AGAINST THE APPLICANT
5. The applicant is a well-known investigative journalist and civil society activist. She is known for her strong criticism of the Azerbaijani government and was involved earlier in her career in numerous journalistic investigations relating, in particular, to cases of alleged corruption and the business activities of public officials (for more information, see Khadija Ismayilova v. Azerbaijan, nos. 65286/13 and 57270/14, §§ 6-9, 10 January 2019, and Khadija Ismayilova v. Azerbaijan (no. 2), no. 30778/15, §§ 11‑12, 27 February 2020). 6. In November 2007 the applicant started to work as a freelance journalist for the Baku bureau of the Azerbaijani service (“Azadliq Radio”) of Radio Free Europe/Radio Liberty (“RFE/RL”). RFE/RL is a non-profit international broadcasting corporation with its headquarters in Prague and funded by the United States Congress. 7. On 1 July 2008 the applicant was recruited to the Baku bureau as acting head of the bureau, based on a fixed-term employment contract. On 1 July 2009 the applicant was appointed as head of the bureau and her employment contract was further extended. On 1 October 2010 the applicant’s employment contract with RFE/RL was terminated and from then until December 2014 she worked for the bureau on a freelance basis. 8. On 20 October 2014 T.M., a former colleague of the applicant at Azadliq Radio, attempted to commit suicide. On 24 October 2014 the Prosecutor General’s Office instituted criminal proceedings under Article 125 (incitement to suicide) of the Criminal Code. 9. On 25 November 2014 T.M. lodged a complaint with the Prosecutor General’s Office accusing the applicant of inciting him to commit suicide. On 5 December 2014 the applicant was charged with the criminal offence under Article 125 of the Criminal Code in the framework of the above-mentioned criminal proceedings and was detained on remand (for more detail, see Khadija Ismayilova (no. 2), cited above, §§ 16-27). 10. On 13 February 2015 the applicant was charged with additional criminal offences under Articles 179.3.2 (high-level embezzlement), 192.2.2 (illegal entrepreneurship committed for the purpose of generating a large amount of income), 213.1 (tax evasion) and 308.2 (aggravated abuse of power) of the Criminal Code (ibid., § 36). In particular, she was accused of the following:
(i)  The applicant had allegedly misappropriated State property and abused her power by illegally employing several individuals to work at the Baku bureau of Azadliq Radio on the basis of service contracts under the Civil Code (which were subject to a simplified low tax rate of 4%). In breach of the requirements of the Labour Code, the applicant had not signed employment contracts with those people (which would have been subject to personal income tax at a rate of 14%) and had therefore inflicted material damage on the State in the amount of 17,992.60 Azerbaijani manats (AZN), which represented a difference of 10% between the above rates;
(ii)  In the applicant’s capacity as head of the Baku bureau of Azadliq Radio, which was a non-commercial organisation, she had allegedly engaged in illegal entrepreneurship by continuing the radio broadcasting activities of the Baku bureau despite the fact that the broadcasting licence given to the bureau by the National Television and Radio Council had expired on 1 January 2008 and had not been renewed thereafter, which amounted to conducting entrepreneurial activity without a licence within the meaning of Article 192 of the Criminal Code. Furthermore, since 1 October 2010 she had been working for Azadliq Radio without being accredited with the Ministry of Foreign Affairs as a representative of the foreign media, as required by the Law on Media, which amounted to “entrepreneurial activity without State registration” within the meaning of Article 192 of the Criminal Code. Consequently, in the period between 1 July 2008 and 1 December 2014 the applicant had acquired profit through illegal entrepreneurship by receiving and paying money to herself and other employees of the Baku bureau “disguised as salaries and service fees” in the total amount of AZN 335,880.54 (including AZN 79,480 during the period after 1 October 2010);
(iii)  While head of the Baku bureau of Azadliq Radio in the period between 1 July 2008 and 1 October 2010, the applicant had allegedly avoided paying profit tax in the amount of AZN 45,145.63. THE APPLICANT’S CONVICTION AND APPEALS
11. On 1 September 2015 the Baku Court of Serious Crimes acquitted the applicant of the charge under Article 125 (incitement to suicide) of the Criminal Code for lack of evidence and convicted her under Articles 179.3.2, 192.2.2, 213.1 and 308.2 of the Criminal Code. It sentenced her to seven and a half years’ imprisonment and a ban on holding managerial and financial positions in public and local self-government bodies for a period of three years. In particular, as regards the charge of illegal entrepreneurship under Article 192.2.2, the court found her guilty on account of broadcasting without a licence and working without accreditation (as described in detail in paragraph 10 above). As regards the charge of tax evasion under Article 231.1 of the Criminal Code, it appears that the court mainly relied on an interim audit report by the Ministry of Taxes of 19 January 2015, issued at the request of the prosecuting authorities, and on a forensic accounting report of 13 February 2015, as well as testimony by the authors of those reports and a number of bank documents. The reports stated, inter alia, that, while during its operations Azadliq Radio made various payments in connection with the collection of information as well as other related expenses, it was not possible to identify the purpose and destination of some of those payments. Some money was paid to individuals who did not work for it and its bank statements did not indicate the purpose and destination of certain payments. Some of the documents confirming the purpose and destination of payments were missing from the documents obtained for audit. As a result of those payments being made for unknown purposes and to unknown destinations, it was determined that Azadliq Radio had engaged in activities not aligning with its main activity as defined in its charter. It appears that, therefore, the authors of the reports regarded the total amount received by Azadliq Radio from its head office for its activities as “profit” and calculated a 20% profit tax (mənfəət vergisi) from that amount. While the applicant was the head of the Baku bureau from 1 July 2008 to 1 October 2010, the unpaid profit tax calculated for that period corresponded to AZN 45,145.63. The court further held that, in accordance with Article 53.1 of the Tax Code, the applicant, as the head of the representative office, was responsible for the under-reporting and non‑payment of those taxes. 12. The applicant appealed against that judgment, arguing that she had been wrongfully convicted of criminal offences that she had not committed. Citing a number of examples of her investigative journalistic work, she submitted that because of this, she had faced extensive harassment in various forms. She further argued that the criminal proceedings against her formed part of the broader harassment she had already faced because of her investigative work and were intended to silence and punish her for her publications exposing high-level corruption. Moreover, in respect of the offence of illegal entrepreneurship in the part concerning her work without accreditation, she submitted that during the period between 1 October 2010 and 1 December 2014 she had not been an employee of Azadliq Radio (and thus, not a representative of foreign media), but had worked as a freelance journalist collaborating with various local and foreign media outlets on the basis of civil-law contracts. Moreover, under the relevant provisions of the Law on Media, accreditation of foreign journalists with the Ministry of Foreign Affairs was not a precondition for journalistic activity, but merely a right that granted access to more opportunities to receive information. The domestic law did not provide for any criminal or other form of liability for not obtaining accreditation and it was erroneous to characterise journalistic activity without applying for accreditation as illegal entrepreneurship. For that reason, it was also “legal nonsense” to conclude that her income from her journalistic work during the relevant period, namely AZN 79,480, had amounted to illegally obtained profit. 13. With regard to the offence of tax evasion, the applicant argued that the finding that Azadliq Radio had “engaged in activities not complying with its main activity as defined in its charter” had been vague and unclear as to what exactly it had meant. Previous tax audits of Azadliq Radio had not revealed any breaches of tax law. Azadliq Radio was a non-commercial organisation and its purposes did not include business activities. As such, it could not be subject to profit tax. Moreover, Azadliq Radio only received money from its parent entity in Prague and classifying the entire amount transferred to it during the period between 1 July 2008 to 1 October 2010 (amounting to AZN 1,354,368 in total for that period) as “profit” had been a “clear manifestation of prejudice” against the applicant. That amount had not been profit, rather it had merely represented the necessary and minimal expenses needed for Azadliq Radio to continue functioning (such as rent, employees’ salaries, fees to be paid to contract-based workers and repairs). Moreover, as head of the Baku bureau of Azadliq Radio, the applicant had not had financial tasks and had not been responsible for paying taxes or social contributions and, according to her employment contract, she had only had a coordinating role between the Baku bureau and the main office in Prague (see, for more detail, Khadija Ismayilova (no. 2), cited above, §§ 8-9). The applicant also argued, in respect of the interim audit report of 19 January 2015, that the Tax Code did not provide for an “interim report” (aralıq aktı) and that the report and its contents had not been in compliance with the requirements of the Tax Code (the specific provisions relied on by the applicant are summarised in paragraphs 25-28 below). The report had not determined the issues of liability, nor had it specifically explained for what exactly the applicant had been responsible, and no decision had been made to hold her accountable for violating tax legislation. Neither that report, nor the forensic accounting report of 13 February 2015, which had been subsequently issued on its basis, could be considered lawful and accepted as evidence. 14. On 25 November 2015 the Baku Court of Appeal upheld the first‑instance court’s judgment of 1 September 2015, repeating its reasoning. In particular, in respect of the offence of illegal entrepreneurship, it held that, as the head of the Baku bureau of Azadliq Radio, the applicant had continued broadcasting after its radio broadcasting licence had expired on 1 January 2008 and that, moreover, she had worked as a representative of the foreign media without obtaining the required accreditation from the Ministry of Foreign Affairs, thus engaging in “entrepreneurial activity without State registration” which constituted the criminal offence of illegal entrepreneurship. In respect of the offence of tax evasion, it found that, based on the available evidence, the applicant, as the head of the Baku bureau of Azadliq Radio during the period between 1 July 2008 and 1 October 2010, was responsible for the under-reporting and non-payment of profit tax in the amount of AZN 45,145.63. The court remained silent concerning the specific arguments raised by the applicant in her appeal. 15. The applicant lodged a cassation appeal with the Supreme Court, repeating her arguments. 16. On 25 May 2016 the Supreme Court quashed the part of the appellate court’s judgment of 25 November 2015 relating to the applicant’s conviction under Articles 179.3.2 and 308.2 of the Criminal Code for lack of the constituent elements of the offence, as well as her conviction under Article 192.2.2 of the Criminal Code for the part concerning broadcasting without a licence, and upheld her conviction under Articles 192.2.2 (concerning her journalistic activity without being accredited) and 213.1 (tax evasion) of the Criminal Code. As to the latter two criminal offences, it repeated the lower courts’ reasoning and did not address any of her specific arguments in detail, dismissing them in general terms by stating that they could not be a basis for concluding that she had not committed those criminal offences. The Supreme Court reduced the applicant’s sentence to three and a half years’ imprisonment suspended on probation for a period of five years. She was released from detention. Her release was subject to her not changing her permanent place of residence without notifying the law-enforcement authorities in advance, which effectively amounted to a ban on international travel for the period of her probation. FOLLOW-UP PROCEEDINGS
17. In the meantime, on 6 May 2016 Article 192.1 of the Criminal Code was amended and the words “tax registration” (vergi uçotuna) in parentheses were added to the Article after the words “State registration” (dövlət qeydiyyatına – see paragraph 22 below). 18. Subsequently, the applicant lodged an application with the Baku Court of Serious Crimes, asking for her criminal conviction under Article 192.2.2 of the Criminal Code to be quashed, submitting that the acts of which she had been convicted did not constitute a criminal offence under that provision following the above-mentioned amendment. She argued that the amendment clarified the meaning of the phrase “State registration” in the definition of the criminal offence of illegal entrepreneurship, by limiting it to tax registration only and, since she had been duly registered as a taxpayer, she could not have been held liable for conducting entrepreneurial activities without State registration. 19. By a decision of 8 August 2016, the Baku Court of Serious Crimes partly dismissed and partly granted the applicant’s request. It rejected her interpretation of the amended version of Article 192 of the Criminal Code, stating briefly that the addition of the words “tax registration” did not limit the original wider meaning of the words “State registration” as previously applied to the applicant’s case. The applicant could therefore not be acquitted. However, the court noted that the relevant law of 6 May 2016 on the amendments to the Criminal Code specified that the words “large amount” (külli miqdar) in Article 192.2.2 meant an amount larger than AZN 100,000. It further noted that, following the quashing by the Supreme Court of the applicant’s conviction for illegal entrepreneurship in the part concerning broadcasting without a licence (see paragraph 16 above), the relevant amount of the applicant’s income generated in relation to the remaining part of the criminal conviction was only AZN 79,480 (which constituted a “significant amount” (xeyli miqdar)). The court therefore re‑classified the offence under Article 192.1 of the Criminal Code and reduced the sentence imposed under that charge to four months’ imprisonment, as well as further reducing her total merged sentence from three and a half years’ imprisonment suspended on probation to two years and three months’ imprisonment suspended on probation. 20. Following a series of appeals, by a final decision of 16 February 2017 the Supreme Court upheld that decision. It held that the amendment to Article 192 of the Criminal Code could not be interpreted as limiting the definition of “State registration” to tax registration only, in particular in the context of activities of foreign media outlets or their representatives. It further noted in that regard that, under the Law on Media, the provisions of which remained in force and unchanged, foreign mass media outlets and their representatives were required to be accredited through the Ministry of Foreign Affairs before they could operate within the country, and that therefore tax registration alone was insufficient for their activity. The court further noted that, contrary to the applicant’s argument, engaging in journalistic or business activity without such accreditation did not, by itself, entail criminal liability; such activity constituted illegal entrepreneurship if, in addition, it caused significant or large damage to citizens, organisations or the State, or generated a significant or large amount of income. In the applicant’s specific case, the court found that she had failed to obtain the required accreditation while she had been the head of the Baku bureau of Azadliq Radio and that, subsequently, from 2010 to 2014, she had conducted entrepreneurial activities generating income amounting to AZN 79,480. Since the income had exceeded the threshold set by Article 192.1 of the Criminal Code, and given the absence of legal accreditation, the court ruled that her conviction under Article 192.1 had been valid and that there were no grounds to annul her sentence. RELEVANT LEGAL FRAMEWORK        CRIMINAL CODE

21. Article 192 of the Criminal Code, before the amendments of 6 May 2016, provided as follows:
Illegal entrepreneurship
“192.1. Conducting entrepreneurial activity without State registration [dövlət qeydiyyatına alınmadan] under the procedure provided for by the legislation of the Republic of Azerbaijan, or without obtaining a special permit (licence) where such a permit (licence) is required, or with the infringement of licencing conditions, or by using objects whose use is restricted in the absence of special permission, where such activity causes significant damage to citizens, organisations or the State or generates significant income [xeyli miqdarda gəlir] –
is punishable by a fine equivalent to twice the value of the damage caused (or income generated) as a result of the criminal offence, or imprisonment for a period of up to six months;
192.2. The same acts:
...
192.2.2.  committed for the purpose of generating a large amount of income [külli miqdarda gəlir];
...
are punishable by a fine equivalent to three times the value of the damage caused (or income generated) as a result of the criminal offence, or imprisonment for a period between one and five years. ...”
22. Following the amendments of 6 May 2016, Article 192 provided as follows (changes in bold):
“192.1. Conducting entrepreneurial activity without State registration (tax registration) [dövlət qeydiyyatına (vergi uçotuna) alınmadan] under the procedure provided for by the legislation of the Republic of Azerbaijan, or without obtaining a special permit (licence) where such a permit (licence) is required, or with the infringement of licencing conditions, or by using objects whose use is restricted in the absence of special permission, where such activity causes significant damage to citizens, organisations or the State or generates significant income [xeyli miqdarda gəlir] –
is punishable by a fine equivalent to twice to four times the value of the damage caused (or income generated) as a result of the criminal offence, or imprisonment for a period of up to six months;
192.2. The same acts:
...
192.2.2.  committed for the purpose of generating a large amount of income [külli miqdarda gəlir];
...
are punishable by a fine equivalent to three to five times the value of the damage caused (or income generated) as a result of the criminal offence, or imprisonment for a period between one and five years. ...”
23. Article 213, as in force at the material time, provided as follows:
Article 213. Tax evasion
“213.1. Evasion of payment of significant amounts of taxes or mandatory State social security contributions –
is punishable by a fine in the amount of one thousand to two thousand manats, or by correctional labour for a period of up to two years, or by imprisonment for a period of up to three years, with or without deprivation of the right to hold a certain position or to engage in a certain activity for a period of up to three years. ...”
24. On 6 May 2016 Article 213.1 was amended in the part relating to the penalties as follows (changes in bold):
“... is punishable by a fine in the amount of two to three times the damage caused by the crime, or by correctional labour for a period of up to two years, or by imprisonment for a period of up to three years, with or without deprivation of the right to hold a certain position or engage in a certain activity for up to three years.”
      TAX CODE
25. According to the Tax Code, tax authorities may conduct either on‑site or off-site inspections of taxpayers (Article 36). An on-site tax inspection may cover the taxpayer’s last three calendar years of activity for profit, income, property, road, and land taxes. For all other taxes, it may include the year of the inspection and the preceding three years (Article 36.3). An off-site tax inspection is conducted without visiting the taxpayer’s premises and is based solely on documents and verifiable information already available to the tax authority regarding the taxpayer’s activities (Article 37.1). An on-site inspection can be scheduled or unscheduled (Article 38.1). An unscheduled inspection may be conducted if a court or law-enforcement authority issues a decision in accordance with criminal procedural law (Article 38.3.6). 26. After an on-site inspection, tax officials must prepare a tax inspection report in the prescribed format. This report must be signed by both the authorised tax officers and the head (or authorised representative) of the inspected entity, or by the individual entrepreneur. The taxpayer may add written comments or refuse to sign it, in which case a note must be added to the report (Article 39.1). The report must specify any confirmed violations of tax legislation, referencing the relevant provisions of the Tax Code or other laws, or clearly state that no violations were found (Article 39.2). A copy of the tax inspection report must be delivered or sent to the taxpayer within five days from the date of its preparation, using a method that confirms delivery (Article 39.4). If the taxpayer disagrees with the report or any part of it, they may, within thirty days from its receipt, provide a written explanation of why they refused to sign it or submit written objections to all or part of the report. Supporting documentation may be included (Article 39.5). Within fifteen days after this thirty-day period ends, the head of the tax authority (or deputy) must review the evidence obtained during the inspection, the taxpayer’s materials and the inspection report. They must then determine whether any violations occurred, whether corrective action is needed and whether sanctions should be imposed (Article 39.6). 27. Following an inspection, the head of the tax authority (or deputy) must issue one of the following decisions within ten days: to hold the taxpayer liable for violating tax legislation (49.1.1); to decline to impose liability (49.1.2); or to initiate additional inspection measures (49.1.3). The decision to impose liability must specify the circumstances of the violation and take into account supporting documents, the taxpayer’s defence and the evaluation of his or her claims. It must cite the specific legal provisions violated and the applicable penalties (Article 49.2). A notice must be sent to the taxpayer within ten days of that decision, identifying the amount owed in tax, interest, financial sanctions, administrative fines and the required actions to correct the violations (Article 49.3). Failure by tax officials to follow these procedures constitutes grounds for a higher tax authority or a court to annul the decision (Article 49.5). 28. Taxpayers, tax agents and their representatives as defined by the Tax Code, as well as tax authority officials, shall bear liability for violations of tax legislation in accordance with the Tax Code, the Code of Administrative Offences, the Criminal Code and other laws (Article 53.1). If more than three years have passed since a tax violation occurred, the taxpayer may no longer be held liable, and no tax obligations may arise from that violation (Article 56.1). LAW ON MEDIA OF 7 DECEMBER 1999
29. Articles 50 and 53 of the Law on Media of 7 December 1999, as in force at the material time, provided as follows:
Article 50. Accreditation (registration) of journalists
“Mass media outlets may accredit their journalists with State bodies, administrations, institutions, organisations and public associations, with the consent of those entities and in compliance with the accreditation procedures established by them. Those entities must provide accredited journalists, except in the case of closed events, with advance information about meetings, consultations and other events, and must create conditions for the journalists to access transcripts, protocols and other relevant documents. If a journalist or editorial office violates the accreditation rules, or if distorted, false or defamatory information about the accrediting organisation is disseminated, as confirmed by a legally binding court ruling, the accrediting organisation may revoke the journalist’s accreditation. The accreditation of special correspondents of mass media editorial offices is also carried out in accordance with the provisions of this Article. In areas under a state of emergency, the specific rules for journalist accreditation and their working conditions are determined by the leader of the state of emergency zone.”
Article 53. Activities of representatives of foreign mass media outlets in the territory of the Republic of Azerbaijan
“The legal status and professional activities of accredited foreign correspondents and other representatives of foreign mass media outlets in the Republic of Azerbaijan are regulated by the legislation of the Republic of Azerbaijan and relevant inter-State agreements. Representative offices of foreign mass media in Azerbaijan shall be established with the consent of the relevant executive authority, unless otherwise provided by inter‑State agreements. The accreditation of foreign correspondents in the Republic of Azerbaijan is carried out by the relevant executive authority [the Ministry of Foreign Affairs] in accordance with Article 50 of this Law. Accredited foreign correspondents in Azerbaijan are granted the same legal status as journalists under this Law. Foreign correspondents who are not accredited in accordance with the established procedures in Azerbaijan are subject to the same rights and obligations as representatives of foreign legal entities. In response to restrictions imposed by a foreign State on the professional activity of Azerbaijani mass media correspondents within that foreign territory, equivalent restrictions may be imposed on correspondents of that State’s mass media outlet in Azerbaijan.”
THE LAW         JOINDER OF THE APPLICATIONS

30. Having regard to the similar subject matter of the applications, the Court finds it appropriate to examine them jointly in a single judgment. ALLEGED VIOLATION OF ARTICLE 7 OF THE CONVENTION
31. The applicant complained under Article 7 that the acts of which she had been convicted had been lawful and had not constituted the offence of illegal entrepreneurship as set out in the applicable domestic law. Article 7 of the Convention reads as follows:
“1. No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national or international law at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the criminal offence was committed. 2. This article shall not prejudice the trial and punishment of any person for any act or omission which, at the time when it was committed, was criminal according to the general principles of law recognised by civilised nations.”
   Admissibility
32. 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. Merits     The parties’ submissions   The applicant

33. The applicant argued that the charge of illegal entrepreneurship was initially based on two factors: Azadliq Radio’s broadcasting without a licence and her lack of journalist accreditation, neither of which, she contended, had constituted a criminal offence on her individual part under domestic law at the time. Nonetheless, she accepted the Government’s submission that, following the partial acquittal and narrowing the charge to the period of her freelance work, her conviction had been based solely on working without accreditation. 34. The applicant maintained that, nevertheless, the narrowed scope of the conviction had lacked a legal basis and had violated Article 7 of the Convention. The applicant emphasised that the Government had failed to counter her claim that accreditation had not been a legal requirement for journalists, including those working with foreign media, under domestic law at the time. She argued that accreditation could not be equated with “State registration” or “licensing” under Article 192 of the Criminal Code owing to its fundamentally different function and nature. 35. The applicant also challenged the characterisation of her freelance journalistic work as “entrepreneurship” under Azerbaijani law. Even if the courts deemed it to be so, she argued that entrepreneurship was not illegal in itself. Rather, Article 192 criminalised engaging in entrepreneurship without proper State registration or tax registration, or, for activities subject to licensing, without a licence. The applicant’s tax registration had never been questioned, and journalism was not an activity requiring a licence under Azerbaijani legislation. The courts, however, had treated accreditation as equivalent to either State registration or licensing under Article 192 and that interpretation had lacked a legal basis. 36. She further pointed out that that understanding had contradicted the Law on Media. According to Article 50 of that Law, accreditation was a system by which State bodies granted journalists privileged access to information, rather than a mandatory prerequisite for engaging in journalism. Article 53 referenced accreditation for foreign correspondents but did not establish a distinct form of accreditation for them beyond what was outlined in Article 50. Furthermore, while Article 53 stated that only accredited foreign correspondents could benefit from journalist status under the Law on Media, it explicitly allowed for non-accredited journalists to operate, reinforcing that accreditation was not a requirement for lawful journalistic activity. 37. Even if accreditation for foreign correspondents was considered mandatory, the applicant argued that it could not fall under the scope of Article 192 of the Criminal Code, as doing so would effectively classify all foreign correspondents as entrepreneurs. She asserted that the principle of nullum crimen, nulla poena sine lege required that the applicability of Article 192 to such cases be explicitly stated in law. Moreover, she contended that she was not a foreign correspondent and that no reasonable interpretation of the term could apply to her situation. As an Azerbaijani national working as a freelance journalist with both domestic and international media outlets, she argued that her case had not fallen within the scope of Article 53 of the Law on Media. She criticised the courts and the Government for failing to address those concerns, instead focusing on the scope of “State registration” under Article 192 of the Criminal Code. 38. As regards in particular the proceedings she initiated after the 6 May 2016 amendments to the Criminal Code (see paragraphs 17-20 above), the applicant argued that the domestic courts had misinterpreted the amendment to Article 192. She maintained that their interpretation had amounted to a continued overly broad and unforeseeable reading of the law. Contrary to the courts’ findings, she asserted that the bracketed phrase “tax registration” had been intended to clarify the meaning of “State registration”, not expand it. She contended that the domestic courts had overlooked both the grammatical construction of the amended Article and, more importantly, the legislature’s intention. During parliamentary discussions, lawmakers had emphasised that the proposed amendments had been designed to decriminalise certain economic offences and to reduce penalties for non‑violent crimes. The amendment had aimed to ease the burden on previously convicted individuals by narrowing the scope of criminal liability. However, the courts had failed to consider those policy goals and had treated the revision as if it had preserved or even widened the existing legal responsibility. 39. Ultimately, the applicant maintained that the legal basis for her conviction for illegal entrepreneurship had been absent, rendering it unforeseeable and unlawful. The Government
40. The Government argued that the applicant had engaged in illegal entrepreneurship from 2010 to 2014 by working without being accredited with the Ministry of Foreign Affairs as a representative of a foreign media outlet. They contended that her failure to be accredited, combined with the profits she had acquired, had amounted to a criminal offence under domestic law. Furthermore, they rejected the applicant’s argument that an amendment to Article 192 of the Criminal Code had limited the scope of the offence to only tax registration, asserting that her interpretation was unsupported by any legal authority. 41. The Government noted that the amendment did not restrict the criminal offence but merely clarified that tax registration was also covered by the provision. They pointed to similar structural formulations in other legal provisions to illustrate how the applicant’s interpretation was, in their view, flawed. For instance, they noted that in Article 159 and subsequent Articles of the Criminal Code, the word “referendum” appeared in parentheses following the word “elections”, which did not imply that the provisions concerned only referendums and excluded elections. Similarly, in Article 174, the word “supervision” was included in parentheses after “guardianship”, meaning the provision applied to both concepts rather than just supervision. The Government further cited Article 200, where the word “services” appeared in parentheses after “goods”, reinforcing that the provision applied to both. They argued that the same logic applied to Article 192 – the addition of “tax registration” in parentheses did not replace or narrow the meaning of the provision but clarified that both State registration and tax registration fell within its scope. They argued that the law required State registration and tax registration when applicable, meaning that conducting business without either form of registration, when required, constituted illegal entrepreneurship. 42. Addressing the applicant’s argument that the legislature’s intention had been to alleviate penalties, the Government asserted that no express reference to Article 192 of the Criminal Code appeared in the parliamentary records – specifically, the official transcript of parliamentary hearings dated 6 May 2016. While some amendments adopted on that date had aimed to reduce criminal responsibility, others, including an amendment to Article 192, had increased penalties. For example, one amendment provided that a person who committed illegal entrepreneurship for the first time could be exempt from criminal liability if they compensated for the damage or transferred illegal income to the State budget. However, another amendment had increased the penalty from double the amount of the unlawful gain to between two and four times the amount, demonstrating that not all changes had been designed to ease punishments. The Court’s assessment   General principles

43. Article 7 of the Convention is not confined to prohibiting the retrospective application of the criminal law to an accused’s disadvantage. It also embodies, more generally, the principle that only the law can define a crime and prescribe a penalty (nullum crimen, nulla poena sine lege) (see Kokkinakis v. Greece, 25 May 1993, § 52, Series A no. 260‑A). While it prohibits in particular extending the scope of existing offences to acts which previously were not criminal offences, it also lays down the principle that the criminal law must not be extensively construed to an accused’s detriment, for instance by analogy (see Del Río Prada v. Spain [GC], no. 42750/09, § 78, ECHR 2013, and Advisory opinion on the applicability of statutes of limitation to prosecution, conviction and punishment in respect of an offence constituting, in substance, an act of torture [GC], request no. P16-2021-001, Armenian Court of Cassation, § 67, 26 April 2022; see also Yüksel Yalçınkaya v. Türkiye [GC], no. 15669/20, § 238, 26 September 2023). 44. The principle that offences and sanctions must be provided for by law entails that criminal law must clearly define the offences and the sanctions by which they are punished, such as to be accessible and foreseeable in its effects (see G.I.E.M. S.r.l. and Others v. Italy [GC], nos. 1828/06 and 2 others, § 242, 28 June 2018). This requirement is satisfied where the individual can know from the wording of the relevant provision, if need be with the assistance of the courts’ interpretation of it and after taking appropriate legal advice, what acts and omissions will make him criminally liable and what penalty he faces on that account (see Cantoni v. France, 15 November 1996, § 29, Reports of Judgments and Decisions 1996‑V; Del Río Prada, cited above, § 79; and G.I.E.M. S.r.l. and Others, cited above, § 242). Even when a point is ruled on for the first time in an applicant’s case, a violation of Article 7 of the Convention will not arise if the meaning given is both foreseeable and consistent with the essence of the offence (see Khodorkovskiy and Lebedev v. Russia (no. 2), nos. 42757/07 and 51111/0, § 570, 14 January 2020, and Advisory opinion concerning the use of the “blanket reference” or “legislation by reference” technique in the definition of an offence and the standards of comparison between the criminal law in force at the time of the commission of the offence and the amended criminal law [GC], request no. P16-2019-001, Armenian Constitutional Court, § 62, 29 May 2020, and the references therein). 45. The Court must therefore verify that at the time when an accused person performed the act which led to his being prosecuted and convicted there was in force a legal provision which made that act punishable, and that the punishment imposed did not exceed the limits fixed by that provision (see Del Río Prada, cited above, § 80, and the references therein). 46. The Court reaffirms that in principle, it should not substitute itself for the domestic jurisdictions. Its duty, in accordance with Article 19 of the Convention, is to ensure the observance of the engagements undertaken by the Contracting Parties to the Convention. Given the subsidiary nature of the Convention system, it is not the Court’s function to deal with alleged errors of fact committed by a national court, unless and in so far as they may have infringed rights and freedoms protected by the Convention and unless that domestic assessment is manifestly arbitrary (see Kononov v. Latvia [GC], no. 36376/04, § 189, ECHR 2010, and Vasiliauskas v. Lithuania [GC], no. 35343/05, § 160, ECHR 2015). More generally, the Court points out that it is primarily for the national authorities, notably the courts, to resolve problems of interpretation of domestic legislation (see Rohlena v. the Czech Republic [GC], no. 59552/08, § 51, ECHR 2015, and Jidic v. Romania, no. 45776/16, § 83, 18 February 2020). The Court also observes that it is not its task to substitute itself for the domestic courts as regards the assessment of the facts and their legal classification (see Rohlena, cited above, § 51), or to rule on the applicant’s individual criminal responsibility (see Kononov, cited above, § 187). 47. However, the Court points out that its powers of review must be greater when the Convention right itself, Article 7 in the present case, requires that there was a legal basis for a conviction and sentence. Article 7 § 1 requires the Court to examine whether there was a contemporaneous legal basis for the applicant’s conviction and, in particular, it must satisfy itself that the result reached by the relevant domestic courts was compatible with Article 7 of the Convention, even if there were differences between the legal approach and reasoning of this Court and the relevant domestic decisions. To accord a lesser power of review to this Court would render Article 7 devoid of purpose (see Kononov, cited above, § 198; Rohlena, cited above, § 52; and Vasiliauskas, cited above, § 161). 48. In short, the Court’s function is to consider, from the standpoint of Article 7 § 1 of the Convention, whether the applicant’s act, at the time when it was committed, constituted an offence defined with sufficient accessibility and foreseeability by domestic or international law (see Korbely v. Hungary [GC], no. 9174/02, § 73, ECHR 2008; Kononov, cited above, § 187; and Vasiliauskas, cited above, § 162). Application of the principles to the present case
49. In the present case, in addition to the offence of tax evasion, the applicant was ultimately convicted of the offence of illegal entrepreneurship committed for the purpose of generating a large amount of income under Article 192.2.2 of the Criminal Code, later re-classified as the offence of illegal entrepreneurship under Article 192.1 of the Criminal Code (see paragraphs 19-20 above). The Court must verify whether the acts attributed to her fell within a definition of that criminal offence which was sufficiently foreseeable.
50.

Outcome for Article 10: violation