12 January 2020 Reasons for the return of law no. 91/2019 “For some amendments and additions to law no. 97/2013 “On the Audiovisual Media in the Republic of Albania”, as amended”
D E C R E E
ON THE RETURN OF LAW NO. 91/2019
“ON SOME AMENDMENTS AND ADDITIONS TO LAW NO. 97/2013
“ON AUDIOVISUAL MEDIA IN THE REPUBLIC OF ALBANIA”, AS AMENDED”
Pursuant to Article 85, paragraphs 1 and 93, of the Constitution, I hereby,
D e c r e e;
Return to the Assembly for reviewing of Law no. 91/2019, “On Some Amendments and Additions to Law no. 97/2013 “On the Audiovisual Media in the Republic of Albania”, as amended, for the purpose of reviewing according to the reasoning attached to this decree.
No. Decree 11413
Tirana, on 11.01.2020
THE PRESIDENT OF THE REPUBLIC
returning for review of the Law No 91/2019
Amendments and Additions to the Law No 97/2013 “On the Audiovisual Media in the Republic of Albania”, as amended”
Honorable Members of Parliament,
The Assembly of Albania, during its plenary session on 18th of December 2019, adopted the Law No 91/2019 “On some Amendments and Additions to Law No 97/2013 “On the Audiovisual Media in the Republic of Albania”, as amended”.
Through the Official Gazette No 4490 Prot., dated 26.12.2019 of the Assembly, administered by the Institution of the President of the Republic with No 5081 Prot., dated 26.12.2019, this Law was forwarded to the President of the Republic for Decree and promulgation.
According to the published parliamentary practice, the Draft-Law is a proposed initiative of the Council of Ministers, drafted by a working group consisting of representatives from the Ministry of Justice, Ministry of Infrastructure and Energy, as well as experts of field.
From the examination of the parliamentary practice on the proposal, examining and approval of the Draft-Law, as well as the content of the provisions of the Law No 91/2019 “On some Amendments and Additions to Law No 97/2013 “On the Audiovisual Media in the Republic of Albania”, as amended, adopted”, it is identified that the commission of this legislative initiative, according to the Council of Ministers, aims at disciplining and regulating by Law the service of media in overall and disciplining the activity of the Electronic Publication Service Providers (EPSP), in particular because of their amplified social, cultural, economic and political impact on the Albanian society.
In the report of the Council of Ministers, it is provided that the electronic media (on-line) are an increasing trend, which are replacing the traditional media, because of simplicity of the access for each individual and the use of on-line portals by an unlimited number of persons.
The Council of Ministers in support to this legal initiative presents as concern the situation of the real-time distribution of the fake news, a problem which in the report is clarified as indicating the need for legislative intervention, aiming to prevent and reduce the negative effects that have in the society the misinformation via the dissemination of these news by the on-line portals, which have a significant impact also due to the possibility of social interaction and the information exchange between individuals.
According to the parliamentary practice, the Government and the Assembly argue that via this Law they aim to create a legal framework that simultaneously ensures, inter alia, the freedom of expression on one hand, but also the protection of the dignity and other fundamental human rights, the respect and the right to privacy, the prohibition of broadcasts that promote intolerance between citizens, prohibition of broadcasts that promote or justify violence, etc.
During the examination and the evaluation of Law No 91/2019, the President of the Republic has followed with great attention the public standings and the concerns raised on the adoption of this Law or forwarded to the President of the Republic by journalists and their associations, domestic and international media, who have followed the consultation process of this Law and provided their opinions and thoughts regarding the Draft-Law and the final adopted Law itself.
The President of the Republic examined Law No 91/2019 referring to the content of the adopted Act and the parliamentary practice followed for this purpose by assessing the compliance of this Law with the European Convention on Human Rights, the principles and provisions of the Constitution of the Republic of Albania, the Jurisprudence of the Constitutional Court, current legislation in force and the protection of the public interest.
Law No 91/2019 contains in its entirety 31 adopted articles, through which are added or amended the provisions of the basic Law No 97/2013 “On the Audiovisual Media in the Republic of Albania”, as amended”.
At the end of the examination of Law No 91/2019, the President of the Republic considers that a part of the provisions of this Law with intention of establishing full legal basis for the improvement of the objective supervision of the audiovisual media service and the formalization by the on-line registration of the Electronic Publications Service Providers (EPSP) in the territory of the Republic of Albania, are steps with a positive trend.
The President of the Republic generally evaluates the changes that Law No 91/2019 brings on the identification of electronic publications service providers, as widely spread communication tools nowadays.
This identification not only brings the creation of a necessary database for the providers operating in the media market, but also creates opportunities for clarifying their daily work functioning, as well as it is a positive tool in protecting the employment rights of the employees and the journalists who perform their duty.
Also, the President evaluates the changes that Law No 91/2019 brings, regarding the protection of children’s rights from the adverse effects that can be transmitted by the broadcasting on electronic media.
On the other hand, from in-depth and comparative study of the adopted Law as a whole, it is identified that some of its provisions, namely Articles 14, 15, 29, 30, are not in harmony and in contradiction with:
– the basic constitutional principles of building a democratic state, legal guarantee and proportionality;
– the constitutional provisions protecting the right of freedom of expression, freedom of press and the right to information;
– the Jurisprudence of the Constitutional Court in the Republic of Albania, whose decisions are binding norms for implementation;
– they are not in line with the standards of the European Convention on Human Rights.
These provisions of Law No 91/2019, as well as other related provisions, do not comply with the situation and needs of the Albanian society and the media market providers, nor with the purpose of the Law itself.
It is therefore necessary to review these provisions, since in the form these provisions are adopted, they are not only infringing the basic constitutional principles, but they also pose a risk for infringing the public interest, which is guaranteed through the exercise of freedom of expression, freedom of the press and the right to information, rights that are necessary for a democratic, free and constitutional order.
The adoption of these provisions in essence contains direct censorship elements that restrict the right to freedom of expression and the media.
This state of censorship is created through the application of non-proportional punitive measures that these provisions provide, measures that can be assessed and imposed by administrative bodies, which in open contradiction to the internal Constitutional and legal order, are empowered to impose immediate execution of these measures, before there is a final decision on their legitimacy.
The entry in force of these changes shall establish an arbitrary and uncertain environment towards the electronic media operators, due to the pressure of applying without criteria and subjectively of the punitive and disproportionate measures foreseen in the adopted Law.
These non-proportional punitive mechanisms that are included in the adopted legal amendments create a possibility to be applied against the on-line media that are critical to the work of the Government. The latter, through its representatives in the decision-making bodies and through the powers that these bodies, has every opportunity to use this legal bases which allow subjective interpretation, to unfairly punish any media that does not fit to the political will of the majority.
This reality would produce intimidation and self-censorship, unlawful closure or suspension of the electronic media, by directly affecting the quality and objectivity of information, which would result in providing to the public facts different from the reality that not only will mislead the society in seeking their rights, but also in fulfilling their civic responsibilities for building and maintaining the democracy itself.
Such a situation would place the country in the limits of authoritarianism, which would pose a threat to the future and integration of Albania, as well as to the existence of a functioning democracy itself.
The President of the Republic in assessing all the issues of the impact of the news and media as a whole, comparing with the adjustments provided for by Law No 91/2019, considers that this Law does not meet the needs of development and expectations of the public and the community of journalists and the media, and does not guarantee their proper functioning.
This law, because of these very problematic provisions, not only does not bring the expected regulation, but on some essential issues it contradicts the constitutional principles and norms.
The willingness to resolve the issues that concern the public, but also the community of the media professionals, must be a real and clearly stated objective, in order that the commitment for respecting a right, but also the protection of the dignity and other fundamental human rights, not to be carried out in damage and in violation of another fundamental constitutional right, such as the right to freedom of expression and information provided for in Articles 22 and 23 of the Constitution.
Any legal initiative that infringes the right to free speech is nothing more than an obvious violation of all the democratic constitutional principles upon which the citizens of the Republic of Albania have decided to build their lives.
The legal modifications that are designed and implemented for operators who practice the profession of field journalist, columnist, office journalist, investigative journalist, or even of the criticizing journalist, are in fact regulations subject to a delicate and truncated space.
This space is like that because of the protection of these principles by the international conventions, as well as by the European Court of Human Rights, which have defined and interpreted various initiatives by countries, party of the European Conventions in this field.
The President of the Republic, during the examination of Law No 91/2019, has analyzed its provisions, as well as the Albanian Civil and Penal Legislation comparing to the international standards on the freedom of expression and operation of the media operators.
After a comprehensive analysis, the President of the Republic considers that the Law No 91/2019, in some of its provisions, through its punitive mechanisms and the decision-making bodies which may impose these punitive sanctions, is trying to place under the political control the media operators, particularly the electronic media, which would constitute a serious infringement of the right to expression and information.
If the newly adopted legal norm does not improve, then the problems, mainly that of political influence, will have the opposite effect, namely that of creating new concerns and problems, making impossible not only the solution of the existing ones, but moreover it would create a true cacophony in a field that is facing its own regulatory difficulties.
Referring to this assessment, the provisions of Law No 91/2019 are in contradiction with the Constitution of the Republic of Albania, Article 10 of the European Convention on Human Rights, and are not in the spirit and the principles set out in the Universal Declaration of Human Rights, concretely as follows.
I. The provisions of Article 14, paragraph 1, letter “c” and Article 15 of Law No 91/2019 and their application in practice, infringes the freedom of expression and the freedom of media, of the rights which are protected and guaranteed by Article 10 of the European Convention on Human Rights and the Constitution of the Republic of Albania, in Articles 5, 11/3, 17, 22, 23.
1. In relation to Article 14, paragraph 1, letter “c” of Law No 91/2019 and the legal insecurity it brings:
The right to freedom of expression and free speech has found special protection in all the adopted international acts, which have also defined the commitments and legal obligations of the Member States to protect the fundamental rights and freedoms of people living in their countries.
The principles established in the international acts, where it is included the right to freely express, have been transformed into concrete and undisputable legal rights and obligations.
The Universal Declaration of Human Rights adopted by the United Nations General Assembly in 1949, in Article 19, guarantees the right to freedom of expression. This Article explicitly provides that:
“Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers”.
The right to freedom of expression, as a fundamental human right, has received special protection and treatment in the European Convention on Human Rights, Article 10 of which provides that:
Freedom of expression
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.”
The European Convention on Human Rights has been ratified by the Republic of Albania with the Law No 8137, dated 31.07.1996, thus becoming part of the domestic legislation, mandatory for implementation.
The Constitution of the Republic of Albania in Articles 5, 116, 122, provides that the rights guaranteed in the international treaties and the agreements ratified by Law are part of the internal juridical system, binding for implementation and prevail over the domestic Laws which are not in compliance with those.
Referring to this definition of the Constitutional level, it is mandatory for the bodies of the Albanian State, and especially the Albanian Assembly, that during the adoption of the new Laws, to take into consideration their compliance with the international acts to which Albania has acceded or ratified.
The right to free speech and freedom of expression is defined as one of the fundamental human rights and freedoms in the Constitution of the Republic of Albania and specifically in Article 22, where it is stated that:
1. Freedom of expression is guaranteed.
2. Freedom of the press, radio and television are guaranteed.
3. Prior censorship of means of communication is prohibited.
4. The law may require the granting of authorization for the operation of radio or television stations.”
Referring to these provisions of the Constitution of the Republic of Albania and the European Convention on Human Rights, it results that the Assembly of Albania by adopting Law No 91/2019 has crossed the borders of the constitutional authorization, through the competencies that the Albanian Assembly has delegated by Law to the decision-making bodies of the Albanian Media Authority (AMA), establishing the ground for direct infringement of freedom of expression.
According to Article 8, paragraph 2 of Law No 91/2019, AMA’s decision-making bodies are the Board and the Complaints Council. Meanwhile, through Article 14, paragraph 1/c of Law No 91/2019; it is intended to amend Article 19 of the basic Law No 97/2013, a provision which determines the main functions of AMA. This provision of Law No 91/2019 foresees the addition of a new competence, through which AMA currently:
“k. Adopts the Regulation on the Organization and Functioning of the Complaints Council, which sets out the specific rules for dealing with complaints filed to the CC (Complaints Council) together with the definition of clear criteria for the implementation of the sanctions provided for by this law, with a view to respect the principle of proportionality;”
This definition by the Assembly is clearly not a lapsus, because the same will is reinforced in Article 132, paragraph 2, as amended by Article 29 of the Law No 91/2019, where full authority is delegated to AMA to determine the criteria for the implementation of the sanctions provided for by this Law, with the purpose to respect the principle of proportionality, is contrary to the provisions of Article 10, paragraph 2 of the European Convention on Human Right, which stipulates that:
“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 …”.
So, referring to this obligation arising from the Convention, the Assembly of Albania had the duty and responsibility that all the procedures, conditions, criteria, restrictions or the manner how it would be achieved a proportional assessment of the implementation of the sanctions provided for by this Law, intended to respect the principle of proportionality, to set them directly by the Law and not to delegate them to the AMA to assign them through a regulation.
This unrestricted right granted to AMA in this provision is actually a right for this body to draft rules that shall have the force of a Law.
This not only contradicts the above provisions of the ECHR, it creates the risk of adopting subjective, regulatory, normative acts, amended from time to time and consequently they carry the evident risk of applying sanctions selectively, as long as the rules for applying these sanctions are allowed by Law to be adopted by a body that cannot assume this level of responsibility, which not only does not provide the level of guarantees provided by the ECHR, but would violate the freedom of expression and freedom of the media.
Meanwhile, Article 22 of the Constitution does not provide for any delegation of this responsibility from the Albanian Assembly to any other authority. Paragraph 4 of Article 22 of the Constitution provides only that the Law may require the granting of authorization for the operation of radio or television stations.
In this way it results proven that the Assembly in drafting and adopting this delegating provision of its responsibilities to the Albanian Media Authority (AMA), acted without the authorization expressly provided by the Constitution, thus endangering in principle that during the application in practice of this provision, to jeopardize the right to freedom of expression, due to the potential possibility of applying obligations not specified by Law.
This situation created by such a provision in Law creates a completely ambiguous social and uncertain legal environment for media operators as a whole and for the society at large, because the Law does not provide clear criteria for the applicability of restrictive austerity measures or administrative sanctions proportionally.
In this way, any operator operating in the field of media and electronic publications would rightly feel threatened and insecure in the exercise of his activity, constantly fearing that for any writing or publication, there may be a complaint which would be assessed through criteria set outside the Law.
This ambiguity of the Law, in addition to the violations justified above, constitutes a direct infringement of the constitutional principle of the rule of law and legal certainty. The existence of ambiguous legal norms, which directly carries the risk of disregarding the principle of the rule of law, serves as a sufficient argument to consider these provisions as incompatible with the Constitution.
In its decisions and consolidated practice, the Constitutional Court has reasoned that: “The constitutional principle of the rule of law shall be considered violated if legal certainty, legal stability and the protection of legitimate expectations are denied or violated. To understand and apply this principle correctly, the law in a society is required to provide certainty, clarity and continuity so that individuals can conduct their actions correctly and in accordance with it […]. (See Decision No 36, dated 15.10.2007 of the Constitutional Court).
Thus Article 14, paragraph 1, letter “c” of Law No 91/2019 not only creates a situation of legal uncertainty, but with the powers delegated to AMA by the Assembly, combined with the disproportionate and non-proportional administrative sanctions contained in the newly adopted Law itself, this new legal norm may turn into a partial and subjective punitive mechanism that can be used subjectively on a case-by-case basis, outside the criteria of Law, at the will of AMA, under dictate or political pressure.
2. In relation to Article 15 of Law No 91/2019 and the resulted legal uncertainty:
The decision-making and regulatory power of AMA is also identified in Article 15 of Law No 91/2019, subject to review. Through this new provision, it is carried out the amendment of the Article 20 of the current Law No 97/2013, which provides for the powers of the Complaints Council. In this new added provision, it is provided for that:
“1. The Complaints Council is the collegial decision-making body, which is selected by the Board of AMA by qualified majority and consists of a chairman and 4 members, media specialists and jurists, who are appointed for a term of 3 years, with the right to be reappointed, no more than once. The procedures for the selection of the members of the Complaints Council, based on the rules of competitiveness, and the rules of organization and functioning thereof shall be determined by decision of the Board of AMA.
According to the above definitions and the whole content of Law No 91/2019, in summary, it provides that the Complaints Council is a collegial administrative decision-making body that functions within and under AMA, which is the primary administrative body for examining a request/complaint.
It is true that the Albanian Media Authority (AMA) is provided by Law to be a legally independent public body, empowered with regulatory powers in the field of audio and audiovisual broadcasting services and other support services, elected by the Assembly of Albania, according to a formula that seeks to balance political support, throughout the election of its members.
But, on the other hand, it is also true that AMA, during its operation as an institution has been under constant pressure, which has undermined the public trust that this body can function independently.
Meanwhile, the Assembly of Albania, the AMA’s superior body, has not made clear to the public how it has consistently managed to control AMA’s activity and the objectivity of its decision-making.
Given that the independent bodies report to the Albanian Assembly on their activities, the political influence and pressure on them is expected to come from the parliamentary majority. The Assembly of Albania has recently shown that against any member of the independent bodies who has criticized the work of the government, the Assembly has been aggressive until initiatives to dismiss these members were taken. Here, it can be mentioned the case of the dismissal of Mr. Arben Malaj from the position of member of the Supervisory Council of the Bank of Albania.
These facts and the government’s aggressive behavior towards the media as a whole and its attack on them by insulting and degrading words create the belief that the ruling majority shall occasionally display its pressure for continued influence over its subordinate bodies.
Moreover, according to the conclusions of prestigious international organizations, the real situation in which the Albanian media operates as a whole has deteriorated, and this is confirmed by:
– Decrease with 7 places in the World Media Freedom Index, according to the conclusions of the journalists’ world organization of the “Reporters Without Borders”;
– The conclusions of the “Freedom House” annual report, according to which: “Media in Albania is partly free”.
– The conclusions of the “Media Freedom Mission” of seven global organizations, emphasizing that, “the Albanian authorities are not fulfilling their obligations towards the internal Law and international instruments in order to guarantee freedom of expression and the media, and highlighting that there has been a deterioration of the security, the working conditions and access to information for journalists”;
– The OSCE/ODIHR preliminary observation report on the monitoring of the voting process in June 2019, noted “the major media outlets serving as lobbying platforms for their owners, thus challenging their editorial independence and inducing self-censorship”.
Also, in the conditions that the Albanian Assembly has been functioning with a limited number of MPs, 122 out of 140, for more than a year, and when its current composition does not fully represent the will of the people and where the control mechanisms within it are not operational, it is clearly shown that this body has fallen under the control of the executive, while it should be the opposite.
In this way, it is understandable that even the body of AMA, its members shall continue to be under the political pressure of the government to fulfill its purpose of appointing or placing in these decision-making bodies individuals associated with the latter.
Under these circumstances, by analyzing how AMA is currently set up and organized, is also at risk the way the constitution and the decision- making of the Complaints Council falls under the significant influence of the ruling majority at all times.
Referring to the definition provided in Article 29 of Law No 91/2019, AMA, the Board and/or the Complaints Council have the right to take measures for the established violations until the imposition of a fine, the reduction of the duration of the license and/or their temporary authorization or suspension, until the license and/or authorization is revoked.
The existence of a body for the examination of a complaint in an administrative manner, before any claim is examined in legal manner is a basic principle of administrative right and one of the ways of protecting or exercising a right, but in any event this administrative process must provide all guarantees, both legal and functional, that will not disproportionately penalize the parties involved.
In this case, the designation of the Complaints Council as an administrative body that examines a complaint and makes a decision should not, in any way, infringe the media service providers in general or the media publications service providers in particular, who are the main subject of legal changes made by Law No 91/2019.
Having realized that the Law does not provide for a provision specifying the criteria and conditions upon which the Complaints Council or the Board may make their decisions respecting the principle of proportionality, and while the decisions of these bodies are executable immediately by the Bailiff Service (referring to Article 132, paragraphs 7 and 8, as amended by Article 29 of the Law), regardless of fact whether a complaint was submitted against them, it is concluded that the services provided by various media operators are at serious risk in the face of biased or accentuated interpretations that may have been valued by various political actors or other actors, who are the main subjects of news by the electronic media.
A media service of whatever form, in the face of such a legal situation provided by Law No 91/2019, not only will be intimated, but in the future it risks facing concepts that shall be defined or interpreted by the elected actors, the elected political forces participating in the Albanian Assembly.
Considering also the current situation and the quasi mono-party composition of the Albanian Assembly, the amendments adopted by Law No 91/2019 as a whole risk becoming an even more dangerous means for violating the free speech and the democracy itself.
If the social behavior were to face such a phenomenon, then it would fall into disturbing situations of handling cases because it would bring ambiguity in perception, thought, elaboration, attitude and decision.
As a consequence, the principle of legal certainty is assessed as being infringed since it is left to the discretion of an administrative body to assess whether a particular form of publication would be considered or not inappropriate and punishable, but at the same time for the same violation it may occur that the service provider is faced with continuous and disciplinary coercive and punitive financial processes.
Thus it is inevitable the establishment of an uncertain environment for the exercise of the journalistic profession, but also of the economic activity of the electronic publications service provider. News, opinion, reportage, statements or any other possible form of journalism has an immediate effect because it goes directly to some citizens and then progressively disseminates to others.
Freedom of expression exercised through the electronic publications service cannot be exercised only through the role of a cold observer of the event or fact; rather, it carries with it both the right and the obligation to comment and interpret the case, within the framework of making a qualitative contribution and within the parameters allowed not to infringe on another right protected by the Constitution, Law, rules of ethics or good practice.
In this context, practitioners of the journalism profession can in themselves stimulate the emphasis on message, thought, opinion or idea or to highlight the weaknesses of governance, political and public debate.
Certainly here is the place to distance from fake news that intentionally hurt or infringe on concrete persons, whether public or not, but everyone is reserved the right to go to court and seek what he or she considers reasonable.
Through the way the provisions of the law are established and the interpretative and regulatory power left to AMA, there is a risk that the providers of electronic publications service, from denouncers of negative phenomena of society and maladministration, shall become controlled by the latter, subject to audit and punishment.
This would infringe the current position that the media as a whole has acquired, as one of the strongest instruments, which makes possible for the control and balance mechanism to operate.
By generally analyzing the spirit of Law No 91/2019, it is assessed that the media service providers, mainly those of electronic publications, appear to be increasingly placed in the position of the accused, forced to prove their innocence for each complaint case.
Such a position in the future shall naturally bring reluctance on their part, especially for publications of events or facts related to public activity and persons or to government scandals denounced for involvement in corrupt practices.
Thus, this Law would result in the reduction of corruption cases and negative phenomena denounced by the media, which is an immeasurable and direct infringement of the disclosure and denunciation of the truth and which is in favor of the government and in disadvantage of public interest.
The Albanian Assembly had to consider more carefully whether AMA (the Board or the Complaints Council) should be the body that could legislate the execution of the imposed sanction, or whether this willingness should remain with the judicial system which is a greater opportunity to have a fairer and more impartial judgment and away from the direct impact of institutional and political dependence.
The establishment and functioning of state bodies with well-defined rules and decisive decision-making is a necessity in every aspect of the right, especially when it comes to restrictions on the right to freedom of expression, a right which enjoys special protection by the Constitution and international acts.
Practically granting powers with decisive decision-making with immediate effect of termination or revocation of a granted license or authorization, or the immediate execution of an administrative penalty by a fine, or other coercive measure provided by Law No 91/2019, by a body whose selection procedure is not defined in Law and does not provide clear and transparent criteria, and practically turns the administrative decision-making bodies (Board and Complaints Council) into bodies at the judiciary level.
For these reasons, the President of the Republic considers that the provisions of Articles 14, paragraph 1/c, 15, should be reviewed by the Albanian Assembly in an integral and harmonized manner with other Articles 25, 27 and 28 of Law No 91/2019, in order to meet the standards dictated by the European Convention on Human Rights, the Constitution of the Republic of Albania and the jurisprudence of the Constitutional Court of the Republic of Albania.
For this purpose, the Assembly of Albania should take into consideration Decision No 16, dated 11.11.2004 and Decision No 56, dated 27.07.2016 of the Constitutional Court of the Republic of Albania, decisions through which the court has extensively reasoned on the protection and respect of the fundamental constitutional rights to freedom of expression, freedom of the press and the right to information, infringement of which would constitute a direct violation of the principle of building a democratic state and free constitutional order (see paragraph 20-26 of Decision No 56/2016 and paragraph 1, etc., of Decision No 16/2004).
II. Articles 29 and 30 of Law No 91/2019, define the punitive measures and financial administrative sanctions which seriously infringe the constitutional principle of proportionality regarding the extent and manner of their execution, turning into an appropriate tool for the exerciser of public authority, to take control of the media power and the media market in general, with severe consequences for democracy and constitutional order.
Pursuant to Article 29 of Law No 91/2019, the Assembly has adopted the complete amendment of Article 132 of the basic Law No 97/2013, which provides for administrative measures for violations.
This article also includes the nature and type of administrative measures that AMA (Complaints Council and Board) may impose on the identified violations. In addition to audiovisual service providers, this provision also includes as subject the on-line electronic publications service providers.
One of the disadvantages of this provision is the fact that, against the media service provider, for both the audiovisual and electronic publications services, it was thought that the sanction imposed by both the Complaints Council and the Board of AMA, is immediately executed even though the case has been appealed and may be examined in administrative or judicial ways.
In particular, the paragraph 8 of Article 132, as amended, provides that, “Decisions of the CC of AMA shall be executed by the Bailiff Service in accordance with the provisions of the Code of Civil Procedure.”
This prediction and this way of execution through the Bailiff Service actually refer not only to the execution of the sanction with a fine as a sanctioning measure, but to all the sanctions imposed by AMA. This indicates an accentuated absence of knowledge or harmonization of this legal norm with the process of enforced execution in general, and provisions of the Code of Civil Procedure, in particular.
According to Article 510 and the following of this Code, enforced execution by the judicial Bailiff Service shall be made only on the basis of an executive title.
The Decision of the Complaints Council, which is not administratively final, as long as it is appealed to the Board, cannot be provided by Law as constituting an executive title.
Even practically, it is impossible for a non-final administrative decision, which may be overturned either by the Board or potentially by the Court, to be invested in advance by the Court to issue an execution order on this non-final decision-making, to then undergo the process of execution by the Bailiff.
The provision as above; the absence of precise definition in this provision of the moment of commencement of the complaints’ deadlines (as in paragraph 5, letter “d)” of Article 132, where the 10 day deadline for complaint against AMA’s decision is not related to the time of disclosure of notification); or the last sentence of letter (d), paragraph 5, section 132, which tells and imposes on the Court, outside a procedural Law, how to decide “whether to suspend or maintain in force the decision of AMA during the examination procedure”, are provisions contrary to the Code of Civil Procedure, and consequently create a considerable uncertainty in the implementation of the legislation in force, by infringing the principle of legal security.
Article 30 provides for amendments to Article 133 of the existing Law No 97/2013, which defines the level of fines for identified administrative violations that may be imposed by both the Complaints Council and the Board of AMA.
It is found that there is an increase in the level of fines as punitive measures up to 2.5 times higher than the level provided by the existing Law, while with the implemented amendments, it is foreseen that subject to the administrative punishments by fines shall be also the electronic publications service providers.
In analysis of the accompanying acts of the Draft-Law, it is not understood whether there is a real and objective study that has preceded the determination of the will of the Government and the Assembly to enforce into law this mechanism for the execution of the administrative decision, hence the immediate collection of the amount of the fine, as well as the determination of the amounts of sanctions provided for in Article 30 of Law No 91/2019.
In the doctrine, it is recognized and accepted the standard that the limitations in general of the rights are subject to the test of the principle of proportionality in all its three components cumulatively, specifically if:
– the legislator’s objective is sufficiently important to justify the restriction of the right;
– the taken measures are reasonably linked with the objective;
– the used means are no tougher than those needed to achieve the required objective.
Regarding the objective and intention of the legislator to create a regulated environment in the field of media services, as assessed in the above analysis, the President of the Republic considers that the definition made by the Albanian Assembly in Articles 29-30 of Law No 91/2019 on the financial sanctions and the manner of entry into force and execution of these sanctions against the media service providers, is inconsistent with the reality of our country, and exceeds the scope and expectations of the purpose of the Law itself.
Moreover, at the approved sanction levels, the margin of these financial sanctions between the minimum and maximum level is very high, while the Law itself in determining these sanctions has not set any principles or guidelines on the methodology of selection in a concrete case, of the concrete measure of sanction, between the minimum and maximum level that the provision provides.
This legal ambiguity regarding the provision of financial sanctions and the way in which they are imposed, creates not only legal uncertainty, but also real spaces for such sanctions to be applied in a non-objective and disproportionately manner.
Above all, in determining penalties of a preventive and punitive nature, the legislator should have considered the assessment of the social risk of the statements, opinions, news, or other forms of publications and the degree of guilt of the service provider.
The Albanian Assembly should have considered that the use of such punitive measures should always remain the last step and only when it is really necessary, as the only means for achieving the goal.
Always, any punitive administrative measure should be provided in such a way that its imposition must firstly be done objectively and based on clear criteria defined in Law, and on the other hand the examination on its legality must be completed in judicial way, so as not to be harmful to these providers to the extent that they are unable to carry out their activity.
The imposition of measures and the obligation to prepay them is not supported even by the state policy to ensure economic stability, to generate income or meet social objectives. In this sense, the execution by pre-paying the value of the sanction before the providers turn to the Court is considered meaningless and an unjustified punitive tool, which in its way of reasoning seems to be entirely deliberate with political objectives.
It is clear that in the way this issue has been handled, it shows that the Albanian government and the Albanian Assembly have decided by Law that the media market regulatory bodies should have the opportunity that in any case and when necessary, to have a regulatory framework in place to be used to pressure the media service providers, mainly those providing electronic publications online, in order to intimidate them in the future and put them under control through the pressure generated by the punitive force of a disproportionate legal provision that may be imposed by a body under political influence.
Reading with attention the accompanying report of the Draft-Law on the purpose of the initiative, it appears that the legislator has consciously perceived this norm as a show of force against media service providers.
This solution that the Government has proposed and the Albanian Assembly has adopted in Articles 29-30 of Law No 91/2019, is not in line with the principle of proportionality, by seriously infringing not only the freedom of expression and freedom of the media, but also the economic freedom of media service providers.
The Assembly has failed to establish a fair ratio between the expressed purpose that it wishes to achieve with the adopted amendments, with the applicable financial sanctions provided for in those amendments. This norm is also contrary to the jurisprudence of the Constitutional Court on this issue.
The Constitutional Court has long reasoned in its decision-making on the principle of proportionality. In its decision No 16/2014, the Court argues inter alia that: “For the establishment of this ratio or for resolving the question of the legitimacy or not of such interference, first of all, reference should be made to the Constitutional principle of proportionality, which is effectively applied in particular in the field of human rights. In this context, it serves as a measure of constitutional control also for the legislative activity of the Assembly. […] ”.
In no part of the accompanying report or parliamentary practice document of this Law, it has not been argued whether this interference or these proposed means to be used are necessary, appropriate, proportional and effective or not.
Such an assessment, also according to the Constitutional Court, is achieved through the balancing criterion, which makes possible to be weighted and evaluated as fairly as possible the general good or public interest protected in relation to a restricted right.
A right or interest, however important for the public or valuable, may not disproportionately weigh on another right or interest protected by the Constitution and Law. The margin of this assessment, and as consequence the ratio created between the protected interest and the affected one, varies in each concrete case. It depends on a variety of circumstances and conditions that vary from one country to another, from one certain period of time to another, from the range of rights that are put in balance and the consequences that would have the advantage of each.
If the Albanian Assembly would have objectively assessed these Constitutional Court reasoning, it would not have adopted provisions of this nature (Articles 29-30) that are furthermore not based on in-depth studies or any analysis to justify imposing such sanctions.
This fact was best identified by the process of public consultation of the Draft-Law with the interest groups, which unanimously identified this mechanism as a very high degree of state interference with the media, by infringing the very essence of the right of press and to free speech.
If provisions of this nature were to come into force, they together with the ambiguity and the space created by the other provisions of the Law justified above, would create every opportunity for any provider of online electronic publications to be permanently punished with unfair punitive measures, which, by being immediately executed, would bring about the economic collapse of the service provider and consequently the blocking of its activity.
The climate of legal uncertainty and fear of retribution also creates economic uncertainty for these electronic publication service providers, making them also inclined towards self-censorship of the materials they shall publish, in order to guarantee the continuation of their economic and professional activity.
As a consequence, this shall result in a inhibition of all forms of exercising the right to opinion, idea, comment, dissent, etc., which are the only means that these providers have mainly against government, political forces or various corporations.
The level of sanction is one of the basic elements of the restriction in general of freedom of expression and freedom of the press. This chosen manner has an even greater effect on the social and economic reality as of our country, where a good economic climate for various actors operating in the media market has not yet been established, or where the country has long been involved in a a severe political crisis, where the representation of the will of the people is at levels unacceptable for a democratic state, or where the judiciary and the justice system as a whole are under the pressure of extraordinary processes, such as vetting.
Under this climate, free, independent and objective media and free, critical and denunciative speech have a multiplying importance and weight, because they somehow fill in as much as possible the gap created by the political imbalance created due to the crisis of representation and vacuums in the judicial system.
The placement of the media at this moment under the pressure of arbitrary punitive mechanisms shows that all the provisions of Law No 91/2019, are not the fruit of a shallow assessment of the government and the Assembly, but a clear goal aimed at bringing free media under control and minimizing the opponent and critical voice.
Assessing the situation as a whole in comparison to the content of Law No 91/2019, the President of the Republic considers that the radical reform provided for in Law No 91/2019 cannot be the instrument to meet the needs that the Albanian society as a whole and the media market are facing today.
Rather, in the adopted form, these provisions create a reality where fundamental human rights will be restricted, legal security violated, public interest infringed, and the media service providers under the political tutelage, and the latter would have dramatic consequences for the life in the country and democratic social order in the Republic of Albania.
Putting public and political actors at the center of criticism or of unwanted information is a fulfillment of the principle of transparency and a means of control to make public the way they exercise their public power.
Precisely, in conditions when the current majority has been able to monopolize almost all legislative, executive, local government and is making every effort to bring the justice system under the political control, keeping the free media uninfluenced and away from the control is not only a public interest, but a mission towards the future of the country and the protection of democracy itself.
Controlling the media and media service providers through the punitive power of Law and a body directly or indirectly dependent on politics would be the means to place this power (the media) under government orders, and affect the content and the quality of service, seriously infringing the public interest in its right to know and to express on the fate and the future of the country.
The independence of media power is essential to the functioning and well-functioning of the rule of law.
Freedom of expression and the right to information, in addition to being fundamental constitutional rights, are related to the principle of building and functioning of a democratic state, declared to be such in the preamble of our Constitution.
If the freedom of expression and of the press is infringed and the media is placed under political control, then the free and constitutional order is also violated, with direct and very serious consequences for Albania’s European future.
III. Lastly, legislative intervention carried out by Law No 91/2019 “On some Amendments and Additions to Law No 97/2013 “On the Audiovisual Media in the Republic of Albania” as amended ”and Law No 92/2019 “On some additions and amendments to the Law No 9918 dated 19.5.2008, “On Electronic Communications in the Republic of Albania” as amended, considered by the Government and the Assembly as “anti-slander” legal packages, are a set of norms that have not been welcomed or are viewed with skepticism by society as a whole, as well as all stakeholders, international organizations, or media specialists and experts.
The President of the Republic has followed with great attention the reactions of local and international journalists, who have regarded the media as the fourth branch of government or the “fourth power”, and that in democratic societies it has the role of the requester of account towards the executive, legislative and judiciary power.
Particularly in the current Albanian reality, the media has served as a means for the constant identification and exposure of the abuse of power. Under the new law, free speech professionals risk abandoning their mission.
These experts have raised the concern that by imposing fines, the Law discourages and impedes the creators and financiers of these portals from continuing their activity. And after analyzing as above the provisions of the Law on sanctions, this concern is real and evident.
As mentioned above, from the conclusions made public by prestigious international organizations such as “Reporters Without Borders”, “Freedom House” and the “Media Freedom Mission” of seven global organizations, it results that negative records on media freedom show that , “Media in Albania is partially free”, “Albania has dropped with 7 places in the “World Media Freedom Index”, “Albanian authorities are not meeting their obligations towards the domestic Law and the international instruments in order to guarantee freedom of expression and media, by emphasizing that there has been a deterioration of security, working conditions and access to information for journalists ”.
Also referring to the comments made by the OSCE and the recommendations of the Council of Europe, the emphasis is not only on strengthening media transparency, but also on ensuring independent judicial examination of media-related complaints, what this Law, in the adopted form, does not guarantee, even undermines it.
After evaluating these conclusions, attitudes and opinions of international organizations, interest groups, or specialists and experts in the media field, in comparison to the content of the provisions of Law No 91/2019, it results that their concerns are just and should be taken into consideration.
For this purpose, the Assembly should reopen once more the process of public consultation for this Law and reflect on the suggestions and attitudes of interested stakeholders.
As stated above, with the sole purpose of improving the intervention in Law No 97/2013 “On the Audiovisual Media in the Republic of Albania”, as amended, in obedience with the Constitution and in application to Article 85, paragraph 1, I have decided to return for reexamination Law Lo 91/2019 “On some Amendments and Additions to Law No 97/2013 “On the Audiovisual Media in the Republic of Albania”, as amended ”, so that this Law can be improved not only in the provisions of Articles 14, 15, 29, 30, justified above, but in its entirety throughout its provisions, since revising and improving them, in the spirit of respecting constitutional principles, would also require changes to other provisions of the Law that are procedurally and materially related to them.
I am also obliged to warn You that failure to reflect by the Assembly would undermine Albania’s credibility as a democratic country and of the rule of law.