How can an NGO draw up an administrative penalty protocol? - This shame must be eliminated

In April 2020, a draft law envisaging amendment to the Code of Administrative Offenses was posted on the official website of the Milli Majlis.

According to the draft law passed in the first reading, administrative penalties were imposed for violation of the norms of the state language in the mass media, Internet information resources, and advertising media. It was envisaged individuals to be fined from 100 to 200 AZN, officials from 300 to 400 AZN, and legal entities from 500 to 1,000 AZN.

I wrote an article about the fact that this project was illegal in several respects and why it should not have been accepted.

My justification was as follows:

“From a legal point of view, liability can be provided after any obligation is defined by law. (within the framework of legitimacy and social necessity, the conditions of balance). The law on liability for the state language is the Law on the State Language. Article 19 of this law provides for liability. However, the subject of liability should be determined by the law itself, not by the Code of Administrative Offenses.

Nine articles (Articles 4, 5, 6, 7, 8, 9, 10, 11, and 12) of the Law on the State Language indicate the areas where using the state language is necessary. According to those articles of the law, it is necessary to use the state language in official ceremonies; in the field of education; in television and radio broadcasts; in service areas, advertisements, and announcements; in special names; in the names of geographical objects; in law enforcement agencies, the Armed Forces, notary activities, administrative proceedings, court proceedings, and proceedings on administrative offenses; in international correspondence; and at the same time, the state language should be used in connection with the division of administrative territory.

Therefore, the liability in the Code of Administrative Offenses should be limited to this framework. However, the draft law envisaging amendment to the Code does not address any of these areas, except for advertising; furthermore, the draft plans to put two important areas, the mass media and the Internet, which are not mentioned in the law, within the scope of liability.

If we pay attention, we will see that the Law on the State Language (Article 6) provides for liability only for television and radio from the media. (In fact, this is controversial; the law was to be limited only to televisions and radios established and financed by the state.)

Therefore, it is impossible to determine the liability for the mass media and Internet resources, and there is no legal basis for this.

The imposition of administrative penalties for violations of the norms of the state language for the mass media and Internet resources as a whole contradicts the international instruments to which Azerbaijan is a party, including Article 10 of the European Convention on Human Rights.”

In the material published on the plenary session of the Milli Majlis on May 8, 2020, it became clear that not only the amendments to the CAO were made but also a number of sectoral laws were amended and adopted after being discussed:

“Chairman of the Human Rights Committee, Zahid Oruj, informed about amendments to the Laws of the Republic of Azerbaijan on Information, Informatization, and Protection of Information, on Mass Media, on Television and Radio Broadcasting, on the State Language in the Republic of Azerbaijan, and on Public Television and Radio Broadcasting (third read).

He noted that the need for amendment stems from the importance of ensuring control over the use of the state language of Azerbaijan and the protection of language norms. It was noted that a public discussion of the bill was held and several issues were clarified.

During the discussions, the opinions of MPs Siyavush Novruzov, Nizami Jafarov, and Gudrat Hasanguliyev were heard and the bill was voted and adopted.”

The text of the discussed and adopted amendment was not disclosed due to the fact that the verbatim records of the Milli Majlis were not posted on the website in time. However, on June 23, 2020, the official website of the President of the Republic of Azerbaijan published documents indicating the entry into force of these laws. It turned out that the word - Internet information resources, which was in the draft, was removed from Article 533-1, which was newly added to the Code of Administrative Offenses, but the mass media was left untouched:

“Article 533-1. Violation of the norms of the state language in mass media and advertising media

For violation of the norms of the state language in mass media and advertising media, individuals shall be fined in the amount of one hundred to two hundred manats, officials in the amount of three hundred to four hundred manats, legal entities in the amount of five hundred to one thousand manats.”

On June 23, 2020, another document - the Decree - was adopted on the official website of the President of the Republic of Azerbaijan. This is the Decree of the President of the Republic of Azerbaijan on the application of the Law of the Republic of Azerbaijan No. 94-VIQD dated May 8, 2020, on Amendments to the Code of Administrative Offenses of the Republic of Azerbaijan and on making amendments in the “List of officials authorized to compile protocols on cases on administrative offenses considered by district (city) courts” approved by the Decree of the President of the Republic of Azerbaijan No. 1361 dated May 3, 2017.

According to the decree, Part 60-1 is added to the “List of officials authorized to compile protocols on cases on administrative offenses considered by district (city) courts” approved by the Decree of the President No. 1013 dated May 1, 2020, as follows:

“60-1. Protocol on cases on administrative offenses provided for in Article 533-1 of the Code:

60-1.1. on behalf of the National Television and Radio Council of the Republic of Azerbaijan, which revealed an administrative error in relation to television and radio broadcasting - officials specified in Paragraph 29.1 of this List;

60-1.2. on behalf of the Press Council of Azerbaijan, which revealed an administrative error in relation to other mass media - officials specified in Sub-paragraph 31.2.2 of this List.”

According to the decree, the administrative protocol on journalists, officials, and mass media outlets violating the norms of the state language will be compiled by the Chairman of the Council, his deputy, the Chairman of the Nakhchivan Press Council on behalf of the Press Council of Azerbaijan.

As the National Television and Radio Council is a collegial state body, it is natural that it has certain powers in relation to administrative offenses in the field of television and radio.

However, what draws attention is the Press Council of Azerbaijan mentioned in paragraphs 60-1.2. The Press Council is a non-governmental organization in terms of its organizational and legal form. It is stated in Article 1 of its Statute:

“1.1. The Press Council of Azerbaijan (hereinafter referred to as the “Council”) is a voluntary, self-governing, non-governmental organization, which does not make income as the main purpose of its activity, established to achieve the objectives set out in this Statute.”

Its founders are mostly journalists. According to Article 3.2 of the Statute, “Founders of printed publications operating in the territory of the Republic of Azerbaijan, editorial offices, news agencies, journalists' associations of these print publications, which are legal entities, and natural persons who accept the requirements of the Statute of Charter can be members of the Council.”

As a public body, it is legally impossible for it to receive administrative authority either as a state body or as a relevant executive authority.

This is the third time that in his decrees, the President “sees” the Press Council as an administrative body and imposes the duty to punish journalists, officials, and mass media as the “relevant executive authority”.

For the first time, it was added to Article 19 of the Law on Mass Media, which provides for the termination of the mass media by the Law of the Republic of Azerbaijan No. 774-IIIQD dated March 6, 2009. With this addendum, the right of some institutions to apply to the court for the purpose of suspending or terminating the activities of the mass media was recognized. By Presidential Decree, the powers of the “relevant executive body” to file a lawsuit to terminate the production and distribution of periodicals were transferred to the Press Council of Azerbaijan under certain articles.

In addition to this document, Article 29 of the Law on Mass Media stipulates that “Free compulsory copies of periodicals, including those exempted from state registration, must be sent by the publishing house to the Press Council as a body designated by the relevant executive authority as soon as the first issue is prepared.”

The second nomination of the Press Council by the President of the Republic of Azerbaijan as the relevant executive authority is scheduled for May 3, 2017. It also gave the Press Council the power to draw up protocols to punish acts under Article 388 of the Code of Administrative Offenses. The cases in which the Press Council drew up an administrative protocol are as follows:

Article 388. Abuse of freedom of information and journalistic rights

388.0. For abuse of freedom of information and journalistic rights by the editorial office of the mass media (editor-in-chief) and journalists (authors), i.e.:

388.0.1. for disclosing information, the disclosure of which is prohibited by law;

388.0.2. for not controlling the preparation of materials published in the press in accordance with the requirements of the Law of the Republic of Azerbaijan on Mass Media;

388.0.3. for disseminating information without indicating its source, except in cases established by the Law of the Republic of Azerbaijan “On Mass Media”;

388.0.4. for producing or distributing mass media products without reference information, or intentional misrepresentation of reference information -

Natural persons shall be fined in the amount of two hundred to three hundred manats, officials in the amount of five hundred to seven hundred manats, legal entities in the amount of two thousand to three thousand five hundred manats.

It is worrying that the individuals and institutions that oversee the government’s legal policy do not pay attention to this issue, which is a violation of constitutional law, and continue to transfer state powers to non-governmental organizations.

Article 6 of the Constitution states: “No part of the Azerbaijani people, no social group or organization, no individual may usurp the authority to exercise the power”

Article 7 of the Constitution states:

III. State power in the Republic of Azerbaijan shall be based on the principle of separation of powers:

• legislative power shall be exercised by the Milli Majlis of the Republic of Azerbaijan;

• executive power shall be vested in the President of the Republic of Azerbaijan;

• judicial power shall be exercised by the courts of the Republic of Azerbaijan.

Article 25 of the Constitution states:

“III. The State shall guarantee the equality of rights and freedoms to everyone, irrespective of race, ethnicity, religion, language, sex, origin, property status, occupation, beliefs or affiliation with political parties, trade union organizations or other public associations. Restrictions of rights and freedoms on the grounds of race, ethnicity, religion, language, sex, origin, beliefs, or political or social affiliation are prohibited.”

However, in practice, there is a legal inequality between an NGO that establishes a media outlet and an NGO (the Press Council) that imposes a fine on it. One NGO was given the right to draw up a protocol of administrative fines, and the other was obliged to comply with the penalty imposed by that NGO.

Unfortunately, during this period, the Press Council did not raise its voice when imposing duties on it that were not in its Statute   and did not say that these duties did not correspond to its mission or the “2. PURPOSE AND OBJECTIVE OF THE ACTIVITY OF THE COUNCIL” specified in the Statute.

This legal embarrassment must be understood and corrected immediately. The Press Council is not a state body or a ministry, but a self-regulatory body. Its powers are within the framework of the Statute adopted by its members and cannot go beyond it. Any decision or protocol addressed to non-members is an abuse of power. Assigning it to perform administrative duties is an illegal "misappropriation" of power.

Alesker Mammadli