The Council of Europe for the decriminalization of defamation

In itself, the presence of liability measures  for defamation in the criminal legislation  has a restricting effect on freedom of expression, said  Penninckx Patrick,  the head of the Department of Information Society of the Council of the Europe, at a round table dedicated to the issues of defamation, which was organized in the framework of the joint project of the Council of Europe and the European Union "Freedom of expression and media in Azerbaijan." According to him, the Council of Europe conducted a study by interviewing more than 1,000 journalists in the European space, and many respondents named among their security risks criminal prosecution for defamation. According to the representative of the Council of Europe, restrictions on freedom of expression are only possible in the case of public incitement to hatred and violence. Patrick also pointed out the inadmissibility of heavy fines for defamation in civil law.

In his view, in protecting   journalists from  disproportionate punishment for defamation important role belongs to the legislature, the judiciary and journalists themselves. So, parliaments should take into account the consensus among the international organizations regarding the decriminalization of defamation. The judicial authorities must follow  the decisions of the European Court of Human Rights when considering defamation lawsuits. Media have to respect the rules of professional ethics. However, the media self-regulatory mechanisms should not extend to self-censorship.

Penninckx believes that journalists should not be prosecuted for their coverage of socially significant problems. Publications in the genre of satire, ironic statement in the form are allowed for the representatives of media, but under the condition that it should not be up to coarse insults. Journalists and the media should also not be liable for the interview of third parties (except in rare cases.) In this state, political and public figures, celebrities should demonstrate a high level of tolerance for criticism.

Expert in media law Alasgar Mammadli said that over the past 15 years against journalists in Azerbaijan have been filed 500 lawsuits,  and  one-quarter of them  in  the form of private criminal prosecution.

Despite the  announced moratorium in 2010 on the application of Article "insult", "slander" of the Criminal Code on the fact that under  these items were prosecuted journalist Khadija Ismayilova, a member of the National Council of Democratic Forces Gultekin Hajibeyli, the head of the Association of Azerbaijani Intelligentsia Eldaniz Guliyev.  Now the courts are to  consider  a criminal lawsuit of  the   head of the state television Arif Alishanov against professor Gulu Maharramli.

Despite the development of the bill "On defamation" with the participation  of progressive civil society, the  parliament emasculated its essence, and the CE Venice Commission eventually gave a negative conclusion because the document did not provide decriminalization of defamation.

The law on defamation was not adopted,  and even the criminal penalties for libel and slander was spread on the Internet, and  its implementation has already begun. So, a  resident of the city of Astara   was convicted for  his criticism of the commercial bank "Akssesbank".

Mammadli also pointed out that in Azerbaijan defamation lawsuits are  initiated as a rule, by  public figures, although they are more likely to be tolerant to criticism. The expert also stated  inconsistence  of the arguments of the government against the decriminalization of defamation in connection with the fact that such rules exist in the laws of the advanced countries of Europe.  Mammadli   said that in France, for example, the law rules  have been existing since the 19th century, and the last time they were applied 35 years ago. The expert believes that in this case, the problem must be approached on the basis of the ECHR case law.

There are two solutions of the  ECHR  on defamation cases on Azerbaijan "Yashar Agazade and Rovshan Mahmudov against Azerbaijan" and "Eynulla Fatullayev against Azerbaijan", which states that the existence of criminal liability for defamation in Azerbaijan is contrary to freedom of expression guaranteed by the European Convention.

In general, the European Court clearly stated that with the exception of calls to hatred or terrorism or riots, in all other cases, freedom of expression cannot be a reason for criminal prosecution. That is to protect the honor and dignity and reputation of another person-not allowed to use criminal penalties.

If Azerbaijan has pledged to comply with the European Convention and to execute the decisions of the European Court it has to decriminalize defamation.

At the same time, the expert expressed cautious optimism about the statements by the representatives of official Baku at the conference regarding the issue of the adoption of the defamation law is not closed.