"The state must be the guarantor of the constitutionally guaranteed right to freedom of the media"

Six journalists have been arrested in Azerbaijan since November 20 to today. On November 20, Director of “AbzasMedia” Ulvi Hasanli and his assistant Muhammad Kekalov were detained, and on November 21, editor-in-chief Sevinj Vagifgizy was detained. Then each of them was charged with smuggling, and by a court decision they were given a preventive measures for a period of 4 months.

On November 27, Aziz Orujev, Executive Director of Kanal 13 Internet television, was detained. A lawsuit was filed under him under Article 188.2 of the Criminal Code (unauthorized construction or installation work on a land plot without ownership, use or lease). By a court decision, a preventive measure was chosen for him to be arrested for a period of 3 months.

On November 30, another employee of “AbzasMedia,” Nargiz Absalamova, was detained. She is also charged with smuggling.

On December 2, Rufat Muradli, the presenter of the Internet television “Channel 13,” was brought to justice under Articles 510 (disorderly conduct) and 535.1 (disobeying a legitimate police demand.) According to the Code of Administrative Offenses, he was arrested for 30 days by a court decision. What is the reason for the arrest of journalists?

The head of the media rights group Khalid Agaliyev answered the questions of ASTNA.

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Question: In recent days, six journalists have been arrested in a row, including one of the arrests was administrative. What motivates these actions against journalists?

Answer: This is not the first time such arrests have been made. Since the late 90s, such arrests have occurred in Azerbaijan with varying frequency. For example, in 2009-2010, there were many arrests of journalists, and Azerbaijan came out on top even in the OSCE space in terms of the number of journalists arrested in those years. Well-known journalists were arrested, from the head of the newspaper "Gündəlik Azərbaycan" Eynulla Fatullayev to the editor-in-chief of the newspaper "Azadlig" Ganimet Zahid. All these cases were already considered many years ago in the European Court of Justice and it was decided that the charges against journalists were unfounded, that journalists were punished precisely in order to prevent them from exercising their rights to freedom of expression. That is, the charges against them were not the reason for any of these arrests. Even in the current situation, it is difficult to see, to find another reason.

Question: The four arrested journalists of “AbzasMedia” have been charged with smuggling. But what does smuggling have to do with journalism?

Answer: Smuggling is one of the considered criminal acts and the subject of this crime can be any sane person who has reached the age of 16. Judging by practice, journalists have been convicted at various times on charges such as hooliganism, mutilation, defamation and even treason. As already mentioned, in the end, the European Court decided that the charges against them were unfounded. This case is similar to those cases.  The arrest of journalists is also accompanied by the dissemination of "leaked" information in the media. If we consider this information in aggregate, then it is possible that we may talk about a violation of the rules for obtaining grants. Violation of these rules entails administrative liability.

Question: It is curious that before law enforcement agencies disseminated official information about the reason for the arrest of “AbzasMedia” journalists, the Foreign Ministry, at a meeting with the Ambassador of France, the Charge d'affaires of the United States and Germany, stated that this media body was funded from abroad. Can't a media structure be funded from abroad?

Answer: According to the new law "on Mass Media", which entered into force in 2022, foreign individuals or legal entities that are not founders, their branches and representative offices, legal entities established by these persons in the Republic of Azerbaijan, as well as state institutions of foreign countries cannot finance media entities. Sponsorship opportunities are available: foreign legal entities and individuals can sponsor up to twenty-five percent of each product of print and online media entities. However, the compliance of the content of the new law with the country's Constitution is controversial.  According to the Constitution, the international treaties that the country stands for have primacy over national legislation. One of the main international treaties that Azerbaijan stands for is the European Convention. The Venice Commission of the Council of Europe also concluded that the new legislation "On Media" contradicts this Convention.

Question: Is the receipt of funding by journalists from abroad on an individual basis, based on contracts for the provision of services, also limited by law? Or are editorial offices unable to perform work on the basis of commercial contracts?

Answer: Earlier I listed the rights provided for by the new Law "On Media", as well as the rights granted by the Constitution. Azerbaijan is a member of the Council of Europe. Even the official structures of Moldova must respond to the request of an Azerbaijani journalist for information that is not considered closed by law, otherwise the violation of the right of access to information can be challenged in the ECHR. With a broad approach, there should be no problems with access to the funds you specify. States may set certain rules, such as information, taxes, etc., but these rules should not be discriminatory or restrictive.

Question: The ban on financing media structures has been applied by Azerbaijan's new law "On Media", which has been criticized by international organizations and received a negative opinion from the Venice Commission of the Council of Europe. Doesn't that in itself mean a violation of European conventions?

Answer: In the years before the adoption of the Law "On Media", significant changes were made to the laws governing the receipt of grants. These changes do not completely restrict access to such Funds. It is supposed to introduce very strict government regulation. The general content is that the state body must give an opinion on the expediency of the activity for which any grants will be spent. If there is such a conclusion, these funds can be obtained to carry out this activity. The approach of the European Court in several cases directly or indirectly related to similar disputes is that the rules currently in force do not comply with the practice of the European Convention.

Question: What would you suggest so that independent media can function and journalists are not arrested?

Answer: The media should be free; this is a right that is primarily guaranteed by the country's Constitution. The State should be the guarantor of this right. Without this guarantee, it is very difficult to talk about any progress.