Site blocking is a legal disgrace

On the basis of complaints instantly lodged to the court on August 8 by the Ministry of Transport, Communication and High Technologies (MTCHT), the same day, without the right to defense to the adverse party, some site were blocked and prohibited beyond the bounds of the country.

It should be noted that the said blocking varies from previous ones. If earlier it was state structures that acted as claimants and claims had been filed under the pretext of state security, current references to the court have been used by MTCHT functionaries - charged with corruption and incompetent - to protect themselves against criticism. In a case like that, the pretext proved to be alleged slander, not national security.

That"s why the incident is a serious breach of the law. The Ministry of Transport, Communication and High Technologies has no right to lodge a slander action at its own discretion. The point is that the Criminal Code (CC) qualifies a slander as accusation against a person, so a specific defamed party should lodge a claim, not a government structure. As distinguished from other claims, this statement of claim should be lodged as a private prosecution. A party alleging a slander should establish to the satisfaction of the court that it has been slandered. Given that a slander is an act of crime under the legislatio of Azerbaijan, it is a duty of a party alleging having been slandered to prove the fact at the court.

A party suspect in slander, enjoying the presumption of innocence as set forth in Article 63 of the Constitution of the Azerbaijani Republic, is found not guilty until a final judgment in the order of a special accusation. Following a special examination on a private charge the court is entitled to make a final judgment. In considering that an action for defamation poses threat to the freedoms of speech and media which are protected by Article 10 of the European Human Rights Convention, sanctions as set forth in this Article may be applied in democratic society in the last resort only.

It should be noted that authorities provided to the MTCHT by new supplements to the Law "On information, informing and protection of information" introduced in the last year are misinterpreted and misused.

It has to be kept in mind that the MTCHT guided by national security considerations may, under a court judgment, apply blocking (actions of this sort are in the competence of public prosecutor and, in fact, there are cases of serious abuse in the issue), in case of slander action it may fully decline from doing it.

Note that an action for slander should be lodged not by a public prosecutor but in the order of a private charge by a party alleging a slander.

All articles validating the closing of sites refer to defamation. The legal procedure tried to prove the fact of defamation in all disputed articles. However, neither diffamed persons, nor their statements were brought to court in the order of private charge.

It"d be appropriate to note the MTCHT is not competent to refer to the court due to protection of persons, public officials included, against slander.

If following a commencement of action in the order of particular accusation by a person alleging that he fell a victim to defamation and court examination, the court resolves the information is slander and the person, on the basis of his appeal to the Ministry of Justice with the purpose of execution of court judgment, has the right to demand from МТСHT to carry out blocking.

The fact that the Ministry of Transport, Communication and High Technologies, unaware of provisions as set forth in the Law "On information, informing and protection of information", has carried out the blocking, comes from incomprehension of media essence and functions, as well as legal ignorance.

In the meanwhile, the MTCHT was to get acquainted with international documents on the subject, including Articles 47, 50, 71 of the Constitution, Constitutional Law "On protection of rights and freedoms", Article 10 of the European Human Rights Protection Convention, an appropriate Law of 2001 "On ratification of the Convention, Article 151 of the Constitution specifying lagal validity of international acts, Article 19 of the UN Pact on Civil and Political Rights and an approriate Law on its ratificfation, the European Human Rights Protection Court resolutions of 2007, a case "Rovshan Mahmudov and Yashar Agazadeh vs. Azerbaijan" and finally, "Fatullayev vs. Azerbaijan".

Deserving attention is the fact that the blocking of news resourses is none other than their closing for society and public, complete liguidation of media freedom in Azerbaijan. Even if there is a slander in the some resources, despite illegal standards in the Law "On information, informing and protection of information," tens of other standards make it impossible to advance on this track.

Closing of sites under the pretext of slander means a direct use of censorship in mass media. A closer look at Articles 47, 50, 71 and 151 of the Constituion of the Azerbaijani Republic reveals that a standard entitling such authorities to the Law "On information, informing and protection of information" is adverse to the Constitution and international documents and cannot be used at all. The question is that the Constitution is a special normative act of supreme legal validity.

Suffice it to say that Article 151 openly says that if provisions of documents adopted by the country come into conflict with laws of the country, standards of international documents are in effect. In other words, the Law "On information, informing and protection of information" is obviously contrary to international documents and provisions of Article 10 of the Convention and cannot be enforced.

Another legal aspect lies in the fact that even in spite of the fact there were neither persons slandered, nor actions for private charge in slander, heads and editors of sites blocked by MTCHT were announced slanderers, and even worse, judges that considered the matter ignored the Constitution and acvtually announced these persons as criminals (sladering party) and thus violated the right to presumption of innocence as set fotr5th in Article 63 of the Constituion.

To charge mass media with slander, it is essential to have claims of a party damaged in the order of prtivate charge. They were to prove validity and truth of their claims, following which a judge was to take an appropriate decision. For this to happen, it was necessary to apply Article 147 of the Criminal Code.

Article 147 of the Criminal Code says that there three conditions to specify information as slander: 1) spreading in mass media; 2) lie and 3) intention.

Suffice it to note that site Arqument.Az served as mediator for informing the countyry"s lesadership about complaints against a head of executive power of Lerik region of local residents that remained without water supply. In keeping with its professional ethics, the same site referred to the position of the executive power as well. This is a direct duty of mass media. To censure media and block their functions are a direct attempt on mass media freedom. If a head of executive power considers that he has been slandered, he should appeal to the court in the order of private charge and prove the fact of slander. But he did not do that, while the Ministry, without any powers and having no court judgment on slander came to the conclusion that the re was a slander, so the site was blocked.

Touching upon information as slandering and insulting, as well as violating inviolability of private life, Article 13-2.3.9 of the Law "On information, informing and protection of information" maintains this within the framework of definitions as set forth in the klegislation. In order that the Ministry of Information, Informing and Protection of Information wourd regard some information as the slander, the information should fall under Article 147 of the Cfriminal Code. It is a crying illiteracy when having not familiarized with a definition of slander in the appropriate law to acknowledge a claim of the head of executive power as a proof of slander and file it to the Court. A judisial competence of a judge who passed such a decision gives rise to serious doubts. If the Ministry is illiterate, a judge should know that a definition of slander is secured in the Criminal Code, so to specify information as slander it is nesessary to prove a lie and intention in mass media information.

Another legal scandal is a blocking of xural.com site that republished an analytical article of Turan information agency. Note that an analytical article is based on diversity of judgments and views. Many decisions adopted on the basis of Article 10 of the European Court on Human Rights Protection clear show that it is essential distinguish judgments and opinions from the fact and that the defamation may be established in line with facts while it is impossible to do the same in regard of opinions. A judge in charge of blocking not only disregarded a jurisdiction of the European Court on Human Rights Protection but also grossly violated provisions of the Law "On mass media". To all appearance, he had no idea of the fact that the law relieves from responsibility a party that spreads unrejected information laid open by another source.

In a word, the latest site blocking is none other than a legal disgrace and be included in matuals as fortuitous event and absurdity of Azerbaijan"s legal system which cannot be disregarded.