Khalid Agaliyev, media expert
Two well-journalists in Azerbaijan – head of the site basta2.com Mustafa Hajibeyli and editor-in-chief of site kriminal.az Anar Mamedov – faced a threat of arrest: criminal charges have been brought against them. At present, underway is a legal procedure at the Baku grave crime court tjhat started a couple of weeks ago. If the court determines the guilt of the journalists, they may be sentenced to eight years of imprisonment.
An electric power-plant failure took place in Mingechevir on July 3, 2018 to have left the country weithout the electricity. The same day, on July 3, 2018 there were attempts on a head of executive power of Gyanja and a policeman. The two events hit the headlines in local masss media and international media structures. It should be added that official statements over the both incidents were noted for some discrepancies and contradictions.
Allowing for the fact that the two events caused broad public resonance, some mass media analyzed other issues, including the activity of town”s administration in the pre-incident period, conditions of energy sector infrastructure, etc. Such an approach of media was quite natural due to the nature of their activity.
Allowing for the fact that web-sites basta2.com and kriminal.az also covered the said incidents, you cannot expect that they dispersed a special information about the mentioned incident, for they worked as “as others did” (power-uncontrolled mass media). Note that some publications dispersed in the reviewed period laid the foundations of a criminal case against journalists. There are five articles published in the period under consideration that formed the prosercution asgainst journalists.
However, four out of the articles are not authored by them; they were borrowed from other mass media. Also, one article is believed to be a remade survey of the news published by some media 2-3 years ago. Under indictment, these articles contained open anti-government calls (contents of articles and “open antigovernment appeals will be dealt with in the second article). As authors of these articles, both journalists were charged with “open anti-government appeal” and with “official forgery”, as weell as “abuse of office” for posting of these materials on their sites.
Official malfeasances and journalists
Our article explores whether the two last accusations are well-founded – “official forgery” and “abuse of office” (accusations in “open anti-governmental appeals” will be dealt with in another article). It is important to specify: may an appeal to illegal actions in the news site be deemed as “offical forgery” and “abuse of office”? To answer this question, it is needless to provide loose interpretation of Articke 309 (“abuse of office”) and Article 313 (“official forgery”). For this reason the very texts of the said articles give answer to the question.
Let”s consider the definition of of the two criminal actions. A “Note to Article 338” of Chapter 33 of the Criminal Code dealing with official crimes provides a list of “public officers”. These include:
“…1. public authorities, including persons elected or assigned to positions in the state bodies or bodies of local self-government as set forth in the Constitution and Laws of the Azerbaijani Republic on the basis of special powers, public servants (including those engaged in specific form of public service), members of municipalities and municipal servants;
2. persons whose candidatures to take up elective positions in the state bodies are registered as required by the Law;
3. heads and employees of government and municipal enterprises, institutions and organizations, including legal entities of public law, as well as commercial and non-commercial organizations;
4. persons in charge of organization-regulatory functions or administrative-economic functions by special authorities in state and municipal enterprises, institutions and organizations, including legal entities of public lawу, as well as commercial and non-commercial organizations;
5. persons engaged in entrepreneurship activity without forming a legal entity;
6. public officials and members of government and elective bodies of foreign states, other employees of international organizations, members of international parliamentary assemblies;
7. judges and other public officers of international courts, local, foreign and international arbiters acting to comply with laws of the Azerbaijani Republic or foreign states, as well as international or local jurymen”.
Как видно, журналисты в этот список не включены.
All things considered, it is obvious that neither news nor articles can be regarded as official document.
Another important question in the case of the journalists is whether news or articles can be regarded as official document. To answer this question, it is essential to clarify a notion “official forgery”. Given the above, by this we mean a deliberate inclusion by a public official or public servant or employee of local self-government body of knowingly false data or amendments in documents or information resources that distort their real content.
It has to be kept in mind that nearly each crime has its own subject matter. As for official forgery, the subject matter is an official document. What”s meant under documents? What”s an official document?
It should be remembered that official documents are written acts issued by bodies of state or local self-government, as well as by state or municipal bodies to confirm information or facts of legal effect. As a rule, official documents have their own requisites and are signed by an appropriate public officer. The Criminal Code specifies that official documents issued by structures which are not state or municipal bodies of self-government cannot be the subject matter of this crime.
In addition to official documents, we are to specify a notion “information resource” as set forth in Article 313. What”s information resource”?
This definition is explained in the Law “On information, informatization and information protection”. The Law says that “information resources” or “information reserves are documents and documental arrays, separate documents and their arrays stored in information systems (libraries, archives, foundations, information banks, etc.)” (http://www.rabita.az/uploads/qanunverilcik/qanunlar_ru/ob_infor.pdf).
Below-cited are findings of the study:
– Subjects of crimes as set forth in Articles 309 and 313 of the Criminal Code upon which Mustafa Hajibeyli and Anar Mamedli are accused, are public officials only (or government officials or public service employees). At least, journalists in M. Hajibeyli and A. Mamedli case are not and cannot be public officials.
– The fact that according to the prosecution the journalists are deemed to be public officials or public service employees is indicative of frivolousness of prosecution. To accuse M. Hajibeyli and А. Mamedli under the two Articles mentioned above, it is essential to specify offence in question, i. e. distribution by the journalists of “official documents” in the “information resources”.
As noted above, under the Criminal Code and the Law “On information, informatization and information protection”, neither journalist article is considered to be “an official document” nor news web site is considered to be “an information resource”.