Aynur Ganbarova v. Azerbaijan and 24 other applications & Mustafayev and Others v. Azerbaijan

Cases: Aynur GANBAROVA v. Azerbaijan and others; Mustafayev v. Azerbaijan and others

Court: European Court of Human Rights (ECtHR), Third Section 

Application Nos: 4587/22; 20096/24 ao

Status: Open 

The cases of Ganbarova v. Azerbaijan ao and Mustafayev v. Azerbaijan ao concern the alleged use of Pegasus spyware against journalists in Azerbaijan. Spyware is a form of extremely intrusive surveillance that permits governments to remotely and surreptitiously access personal devices, including all information and data they store such as phone calls, text messages, and emails, regardless if the information is encrypted. 

PI's intervention seeks to assist the European Court in its assessment of whether the use of spyware, such as Pegasus, is compatible with Article 8 of the Convention. 

First, we discuss why, in our opinion, the use of spyware, such as alleged use of Pegasus, violates the Article 8 right to privacy, and why its use against journalists is neither necessary nor proportional under the law. Second, we argue that this violation of Article 8 is so severe that it transgresses upon the essence, or the very core, of the right to privacy. The essence of the right to private life rests on three interlocking values: human dignity, personal autonomy and the security of a protected sphere of private existence. In other words, Article 8 cannot be restricted below a domain within which individuals may develop their identity, maintain confidential relationships and communicate freely without arbitrary state intrusion. Third, we argue that due to this transgression upon the essence of the right, the use of commercial spyware amounts to a breach of Article 17. 

Article 17, also known as the "abuse clause", prevents people and states from intentionally destroying any of the rights enshrined in the Convention. First, it requires that states commit an act that amounts to the "destruction" of a right - we argue that because spyware transgresses upon the very essence of the right to privacy, this transgression amounts to a destruction. Second, it requires that states destroy the right in an intent to abuse its power. We suggest that the Court establish intent by considering a) that any states using Pegasus spyware will have known, or should have known, that it is an extremely intrusive form of surveillance because of the amount of public reporting about it; b) whether the alleged use of Pegasus spyware against journalists in Azerbaijan was systematic and widespread; and c) whether the use of Pegasus has occurred in the context of a broader crackdown on democratic values.