Background

On 19 September 2012, the Presidential Administration of the Republic of Azerbaijan requested the assistance of the Venice Commission in drafting a Law on Defamation, as part of the National Programme for Action to Raise Effectiveness of Protection of Human Rights and Freedoms and of the execution of two judgments of the European Court of Human Rights (hereinafter the Court) against Azerbaijan1, in which the Court found violations by Azerbaijan of Article 10 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (hereinafter ECHR).

The scope of the opinion is to assess whether the Draft Law and other relevant statutory provisions meet the European standards on the protection against defamation, in particular Articles 8 and 10 of the ECHR and the principles established by the Court’s case law.

Upon accession to the Council of Europe in January 2001, Azerbaijan committed inter alia to guaranteeing freedom of expression and the independence of the media and journalists.

 

However, as reported by various sources, 13 years after the country’s accession to the Council of Europe, enjoyment of freedom of expression remains considerably problematic in Azerbaijan. Journalists and the media continue to operate in a difficult environment and self-censorship is allegedly high among newspaper editors and journalists, in particular those who seek to expose economic and political corruption in the country. As indicated by the Monitoring Committee of the Parliamentary Assembly in December 2012, although “repeated calls have been addressed to the authorities […] to delete Articles 147 (defamation) and 148 (insult) from the Criminal Code, which provide respectively for up to three years and up to six months of imprisonment”, the legislative framework - and related practice - with regard to the freedom of expression continue to raise concern.

In Mahmudov and Agazade v. Azerbaijan and Fatullayev v. Azerbaijan, the European Court of Human Rights found that Azerbaijan had violated Article 10 of the ECHR and, in particular, the right to freedom of expression of journalists. The Court held that the unjustified use of imprisonment as a sanction for defamation had contravened the principle that the press had to be able to perform the role of a public watchdog in a democratic society. The Court found no special circumstances justifying such a sanction, such as incitement to violence or racial hatred, in any of the cases. In Fatullayev v. Azerbaijan, it found the reasons invoked to justify defamation as regards the applicant’s statements insufficient, and concluded that the way domestic courts applied the criminal provisions on terrorism to the statements at issue was an arbitrary interference with the freedom of expression. Further applications against Azerbaijan concerning Article 10 ECHR issues are pending before the Court.

The legislative process, including the preparation of a comprehensive law on the protection against defamation, is part of the general measures required by the execution of the above judgments and of the National Programme for Action to Raise Effectiveness of Protection of Human Rights and Freedoms, approved by the President of the country in December 2011. The National Programme specifically mentions the aim of decriminalizing defamation.

 

Standards
As far as applicable standards are concerned the opinion contains the necessary explanations of the right to freedom of expression, the press as public watchdog and the public’s right to receive information; permissible restrictions on freedom of expression and sanctions.

As for defamation Prohibition of defamation and related legislation raise the issue of the balance to be struck between freedom of expression, as protected by Article 10 ECHR (Article 19 ICCPR) and the right to respect for private and family life, as protected by Article 8 ECHR (Article 17 ICCPR). The right to protection of one’s reputation comes under Article 8 ECHR as part of the right to respect for private life. In defamation cases the protection of one’s reputation must be weighed against the wider public interest in ensuring that people are able to speak and write freely, uninhibited by the prospect of being sued for damages should they be mistaken or misinformed. Furthermore, as established by the Court in Handyside v United Kingdom, the protection of Article 10 applies not only to information or ideas that are favourable and inoffensive but also to those that offend, shock or disturb the State or a sector of the population.

The opinion evaluates the present legal framework for the protection against defamation in Azerbaijan.

 

Conclusions

 

“115. The effort made by Azerbaijan to legally regulate and delineate protection from defamation as a restriction of freedom of expression, is a welcome development, as is the commitment, in the 2011 National Programme for Action to Raise Effectiveness of Protection of Human Rights and Freedom, to improving the legislation in order to decriminalize defamation.

116. The Draft Law on the Protection against Defamation is a positive first step in devising comprehensive civil legislation in this field. It aims at providing efficient guarantees for the protection of reputation, while safeguarding free enjoyment of freedom of expression, including the right to receive and impart information and uncensored and unhindered journalism.

117. However, in its current form, the Draft Law is, in many respects, not in line with the applicable ECHR principles and case law and fails to ensure adequate implementation of the country’s obligations in this field. Moreover, it seems to have been prepared in complete isolation from other parts of domestic law and no progress has been made towards decriminalizing defamation.

118. Additional drafting is required to increase clarity, bring definitions and rules in line with the ECHR concepts and language, as well as with the interpretation provided by the Court. Specific reference to the ECHR and other applicable international instruments could be made in the Draft. Also, the Draft Law has to reflect and consistently address, throughout its provisions, key concepts, principles and distinctions enshrined in Article 10 ECHR and developed by the Court. These include the essential role of the press as public watchdog and the public’s right to receive information, the importance of political debate in a free and democratic society as well as the fundamental requirement of proportionality of restrictions to freedom of expression and the chilling effect of disproportionate sanctions and awards. Where appropriate, the Draft may benefit from explicitly stating these principles.

119. The Venice Commission notes with regret that, in spite of the rapporteurs’ preliminary recommendations, no measures have been taken to address the shortcomings identified therein, review the Draft Law in a wider context and bring it in conformity with the applicable standards. It finds it worrying that, in spite of the authorities’ repeatedly stated commitment to work towards decriminalization of defamation in co-operation with the Venice Commission, defamation is still associated with excessively high criminal sanctions, including imprisonment. Its scope has been even widened to online expressions.

120. The Venice Commission considers it essential to ensure that regulations dealing with defamation are formulated in a way that prevents unduly severe rules and sanctions and is of the view that strong and effective remedies - while proportionate - can be provided through civil law. A comprehensive and consistent approach - development of strong and efficient civil law provisions, coupled with the removal/substantial amendment of the relevant criminal provisions - is necessary to ensure the compatibility of the legislation with the requirements of the ECHR.

121. The Venice Commission remains at the disposal of the authorities of the Republic of Azerbaijan for further assistance. “

  Text of the opinion CDL-AD(2013)024