The research group of the Institute for Democratic Initiatives (IDI), consisting of graduates of the training “young human rights defenders”, has prepared a research document on the state of freedom of expression on social networks in Azerbaijan.
The purpose of the research document is also to study the state of freedom of expression in Azerbaijan, especially on social networks, to describe the rules governing freedom of expression in local legislation, to indicate the nature of the facts of interference with freedom of expression, to reflect the approach of the European Court of Human Rights to freedom of expression, analysis of research results and provision of a final recommendation.
As part of the analysis of legislation, the Constitution, the law “On Information, Informatization and Protection of Information”, the Code of Administrative Offenses, the Criminal Code and other relevant legislative norms were reviewed and analyzed.
The 47th and 50th Articles of the Constitution of the Republic of Azerbaijan and a number of ratified local and international documents also protect freedom of expression. The legal grounds for interference with freedom of expression are limited in these documents, and the European Court of Human Rights requires that interference may be necessary, both in a democratic society and in proportion to the violation committed.
From the point of view of the functioning of social networks in local legislation, there are a number of problematic points. One of them is chapter 3-1 of the Law of the Republic of Azerbaijan “On Information, Informatization and Protection of Information”, concepts included in the chapter of this law “Information resources of the Internet.” … For this reason, this article is applied very widely and does not meet one of the three main criteria for the quality of a law – the principle of predictability.
One of the biggest problems in the legislation is the existence of criminal liability for defamation, its widespread use and even the punishment of sometimes owners of facial expressions by imprisonment. The Parliamentary Assembly of the Council of Europe, in its 2007 recommendation No. 1577, called on the states parties to abolish the penalty of imprisonment for defamation.
This has been repeatedly stressed in cases found to be a violation from the point of view of Article 10 of the convention adopted by the European Court of Human Rights against Azerbaijan.
Several articles of the Criminal Code criminalize defamation. One of them is designed to protect the honor and dignity of the president. This article contradicts the principle, repeatedly mentioned in the decisions of the ECHR, that representatives of the state, public and political figures, including those in charge, should be more tolerant of criticism.
When considering the applied part of the legislation, it is noted that administrative legislation is also used to suspend freedom of expression. For example, Article 388-1 of the Administrative Code is widely used in judicial practice in relation to political activists. Also, speaking about the restriction of freedom of expression, it is important to note article 211 of the Code of Administrative Offenses (Violation of the anti-epidemic regime, sanitary-hygienic and quarantine regimes), especially during a pandemic. Critical publications related to the measures taken by the state during the quarantine period were authorized in accordance with this article.
One of the main violations by the ECHR in many cases against Azerbaijan is the decisions taken in connection with the proportionality of punishments. Thus, the ECHR stated that the local courts in their decisions chose the most severe sanction, in particular, in cases of defamation, did not take into account the factors of remorse in public debates and the role of a person in public life.
The research paper examined cases of people sharing their thoughts on social media during 2020 and then being interfered with because of their beliefs. To gather the facts, the media were monitored and interviews with the victims were conducted. The investigation found that activists criticizing the measures to combat the coronavirus and journalists who share on social media criticizing the decisions made in connection with the pandemic, people criticizing the app, were subjected to illegal, disproportionate interference. They were summoned to police stations or brought to administrative responsibility.
During this period, several activists were prosecuted under Articles 147 and 148 of the Criminal Code. This also indicates that criminal liability for defamation is widely used in Azerbaijan. Persons who express themselves are punished with imprisonment.
In addition to imprisonment as a punishment mechanism, there are facts of isolation, dismissal, and forced mental illness. During the investigation, one activist was placed in a psychiatric hospital because of a video he shared on a social network, and two other activists were fired for political activities and actions.
The research paper concludes that freedom of expression on social media is limited in Azerbaijan. Not only activists expressing their opinion, but also journalists covering the problem of others were subjected to illegal interference. These restrictions are based on both legislation and practice.
The research paper contains a final recommendation. The recommendation provides for the decriminalization of defamation, consideration of the restrictive provisions of the law “On Information, Informatization and Protection of Information” and bringing it into line with the Constitution and the European Convention on Human Rights (ECHR), prevention of abuse of Articles 211, 388-1 and 535 of the Code of Administrative Offenses ( Administrative Code) and Article 139-1 of the Criminal Code, the use of their powers by the police for political pressure. Local courts must take into account factors such as the subject of public interest, the social role of the individual and the outcome of the exchange of information. Local courts, when balancing the principles of freedom of expression and respect for private life, should take into account the reason for the topic covered, the public role of the individual, the result of the dissemination of information, and thus should refrain from applying the most severe sanctions, especially punishment in the form of imprisonment, if the expressed opinion or exchange is not are hate speech, etc.