The Sabayil District Court made decision to block website www.xural.com

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The Sabayil District Court made decision to block website www.xural.com

 

The analysis of violation of the law during legal proceedings on

 

blockage of the website www.xural.com

 

The Baku City Sabayil District Court
Case # (009)-2858/2018
August 08, 2018
Presiding Judge: Shahin Abdullayev
Applicant: The Ministry of Transport, Communications and High Technologies of the AR
Party in interest: Avaz Zeynally 
Defender: Zibeyda Sadyqova 

In recent years, the pressure of Azerbaijani authorities on the freedom of speech increased even greater. Journalists, bloggers, writers and publicists who criticise the policy of government are arrested. Many of them are not able to withstand the pressure and have to leave the country. The websites, internet portals are also put under pressure; some of them are blocked without any court decision (www.abzas.net, www.islamazeri.az, www.islaminsesi.az, www.nur-az.com, www.criminal.az, www.gununsesi.info, www.realliq.info, www.realliq.az, www.politika.az, www.nia.az, www.neytral.az, www.vediinfo.az, www.obyektiv.org, www.sonolay.az, www.ulus.az, www.qanunxeber.az, www.infoaz.org, www.xalqinsesi.com, www.aztoday.az, www.bastainfo.com), others are blocked through the appeal of the Ministry of Transport, Communications and High Technologies of AR – to the court.
In 2017, above mentioned Ministry appealed to Sabail District Court with the request to block following websites: www.meydan.tv, www.turan.tv, www.azerbaycansaati.tv, www.azadliq.org (official site of Radio Azadliq (Freedom), www.azadliq.info (official website of the newspaper Azadliq). In 2018, same Ministry appealed to the court with the request to block following websites: www.xural.com, www.monitortv.info, www.anaxeber.az, www.24saat.org, www.arqument.az. In all cases, the Sabayil District Court made the decision to block websites.
Among blocked websites, there is a website – www.xural.com, which is led by the former prisoner of conscience, journalist Avaz Zeynally.
In its application, the Ministry of Transport, Communications and High Technology indicated that there were articles published on www.xural.com, which contained information of slanderous nature. However, above mentioned articles touched upon the actual, everyday problems, including political issues:
• articles on the Ganja events (on July 3, 2018, there was an assassination attempt against the Head of the Executive Power of Ganja city – Elmar Valiyev. On July 10, 2018, the Deputy Chief of Ganja City Main Police Department Colonel Ilqar Balakishiyev and the Deputy Chief of Ganja city Nizami District Police Department Lieutenant Colonel Samad Abbasov were murdered);
• article on the former political prisoner Ilqar Mammadov (he was detained during social protests in Ismayilli district in 2013 and released on August 13, 2018);
• article on political prisoner, a well-known blogger Mehman Huseynov who is serving a sentence; including other articles of a political nature. In its complaint, the Ministry asked the court to limit the access to the website www.xural.com

Commentary by an expert lawyer:
The court decision is unlawful and groundless. While filing the complaint, the Ministry of Transportation, Communications and High Technologies referred to the article 13-2.3.9 of the Law of AR “On information, informatisation and protection of information”. This Article states: 
“13-2.3. The proprietor or owner of the informational Internet resource and its domain should not allow distribution of the following data in given Internet resource: 13-2.3.9. the information containing offensive and slanderous nature and violating immunity of private life; 13-2.3.11. other information prohibited by the laws of the Azerbaijan Republic”.
According to the article 13-3.2 of the Law, “in case, when banned information is not removed from the informational internet resource within 8 hours after notice, the corresponding body of the executive power may refer to the district court connected to its address, with the request to limit the access to the informational internet resource”.
During the trial proceedings, the head and founder of the website www.xural.com Avaz Zeynally showed to the court the corresponding notices, which he received from the Ministry about the removal of three articles from his website. However, he has not received any notice in relation to the fourth article. He also indicated that all the articles were taken from other websites and they do not contain any information of an offensive and slanderous nature.
It is necessary to underline here, that the Ministry did not refer to the Law of the Azerbaijan Republic “About mass media” in its statement. The Ministry indicated in its statement that the officers of electronic security service established that the articles published on the website contained the slander and insult. In such case, it is important indicate that the electronic security service officers of the Ministry do not have any authorisation to determine the slanderous or insulting nature of the articles. 
If the articles published in mass media discredit the honour and dignity of a person, and contain insulting and slanderous data, then the affected person may apply to the court with the private prosecution and request from the court to institute criminal proceedings against the person responsible in accordance with articles 147 and 148 of the Criminal Code of the Azerbaijan Republic.
According to the Article 147 of the Criminal Code of the Azerbaijan Republic, the slander is distribution of obviously false information which discredit honour and dignity of any person or undermining his reputation in public statement, publicly or in mass media shown products or in mass dissemination of the information on Internet. Article 148 Criminal Code of the Azerbaijan Republic states: “The Insult is deliberate humiliation of honour and dignity of a person, expressed in the indecent form in the public statement, publicly or in mass media shown product or, in mass distribution on Internet”.
Only a natural person may act as the subject in given crime category, since the honour and dignity are the concepts related to the natural persons. In given case, the Ministry cannot indicate on the matter whose honour and dignity is affected and offended. This is purely subjective evaluation. 
The Criminal Code of the Azerbaijan Republic comments on the objective side of the given crimes in such a way: “The objective side of the slander reflects itself in the distribution of obviously false information which discredit honour and dignity of any person or undermining his reputation. Distribution itself is reflected as the dissemination of information to any person, the information that is not valid and carries the humiliating character. 

Slander should not be considered in cases, when a person gives evaluation of any individual, of his acts, works written by him, or job done. If this evaluation is conducted in indecent way, it may be viewed as insult. In other cases, it does not contain any corpus delicti, even if this evaluation is negative and offensive to a person” (http://jurisprudence.club/ugolovnoe-pravo- uchebnik/statya-129-klevetakommentariy-state43553.html). 
According to the Code of Criminal Procedure of the Azerbaijan Republic, the following persons shall be recognised as victims bringing a private prosecution (Article 88.1):
• 88.1.1. a person who applies before, during or after the preparatory court hearing on semi-public criminal prosecution, but before the court starts examining the case, to be allowed to appear in court as a victim bringing a private investigation: as from the receipt of the application (article 88.1.1. Code of Criminal Procedure of the Azerbaijan Republic);
88.1.2. in a semi-public criminal prosecution, a person who has suffered damage as a result of the offence and asks the prosecuting authority for proceedings to be instituted, for an investigation to be carried out and for recognition as victim: from the moment when he is recognised as victim in the ongoing case (article 88.1.2. Code of Criminal Procedure of the Azerbaijan Republic);
• 88.1.3. a victim of an offence who lodges a complaint with the court with a view to a private prosecution: from the moment when the court decides that the complaint falls within its jurisdiction or schedules it for consideration by the court. (article 88.1.3. Code of Criminal Procedure of the Azerbaijan Republic).
According to the materials from the court hearings on the case of the blockage of the website, no one (not a single person) applied to the court as a private prosecution. Therefore, no one was recognised in capacity of a private prosecutor and victim. The linguistic examinations – in order to establish which words (expressions) in published articles had affected and offended the honour and dignity – were not appointed. The court did not investigate, which facts published in the articles were a slander and which represented actual facts.
Without investigating and establishing the true reasons behind the complaints of the Ministry of Transport, Communication and High Technology, the court only listened to its arguments. Even if we assume that the articles published on the website contained offensive and slanderous nature, then the Ministry could’ve asked from the court, to block only these articles, but not the entire website. The request for full blockage of the website is unacceptable.
According to article 50 (Freedom of information) of the Constitution of the Azerbaijan Republic:
I. Everyone is free to look for, acquire, transfer, prepare and distribute information.  II. Freedom of mass media is guaranteed. State censorship in mass media, including press is prohibited. In accordance with article 50 of the Constitution of the Azerbaijan Republic, Article 1 of the Freedom of Information Act states: “Everyone is free to look for, acquire, transfer, prepare and distribute information”. According to current legislation, the information means data, regardless of a form of their representation, on the events proceeding in the nature, society and the state; on processes, and also on facts and persons. The right to freedom of speech (expression) and dissemination of information is also guaranteed by Article 10 of the European Convention on Protection of Human Rights and Fundamental Freedoms. According to this article:
1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises. 2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.
As we see, Article 10 of the European Convention provides certain restrictions. The accurate list of restrictions contains in paragraph 2 of the Article 10. Freedom of speech can be limited for “for the protection of the reputation or rights of others”. During the trial on the complaint of the Ministry of Transport, Communication and High Technologies, it was not established whose reputation was affected due to published articles on the website www.xural.com. In order to establish the violation of the Article 10 of the European Convention on Freedom of speech (expression) and dissemination of the information, the European Court of Human Rights (ECtHR) answers to several test questions on each particular case:
· if agencies intervened to this right · if the intervention was provided by law; · if the intervention had lawful purpose in accordance with Article 10, Paragraph 2; • if the intervention was “necessary in a democratic society”. If we can answer positively to the first question, the answers to all other questions will be negative. The ECtHT indicates that two requirements arise from the expression “provided by law”. First, the law must accessible to everyone. Secondly, law must be clear, transparent and predictable to everyone. 
Concerning third question on the legality of the intervention, the Ministry tried to justify its complaint by stating that the articles contained the slanderous and offensive expressions. However, in this case, there are no victims, as provided by the criminal legislation. Thus, it is impossible to speak about the lawfulness of the intervention. And the last. Was the intervention “necessary in democratic society?”. There is no doubt that all articles that were indicated by the Ministry of Transport, Communications and High Technology provoked public interest. And in democratic society, the intervention in the publication of such articles is simply unacceptable. 
“As the Court had already noted, Article 10 guarantees not only freedom of press to inform society, but also the right of the society to be informed properly” (statement of the ECtHR in the case the Sunday Times V. United Kingdom on April 26, 1979). See: http://echr.ru/documents/doc/2461498/2461498.htmhttps://www.eui.eu/Projects/CentreForJudicialCooperation/Documents/2011-10-28-29/ECtHRSundayTimesvUK.pdf
The application of the Ministry of Transport, Communications and High Technologies to the court contradicted the right of the society to receive information. The decision of the Sabayil District Court contradicted the right to freedom of speech (expression), violated the legislation of AR and International Law.