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”

Executive Summary

The independence of the media is the essential essence of the functioning and well-being of the rule of law.

If freedom of expression and of the press is violated and the media is placed under political control, then the free and constitutional order will also be violated, with direct and very serious consequences for Albania's European future.

The President of the Republic considers that this law does not meet the needs of the development and the 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 about the expected regulation, but on some essential issues it contradicts the constitutional principles and norms.

Any legal initiative that infringes on the right to free speech is nothing more than a blatant violation of all democratic constitutional principles upon which the citizens of the Republic of Albania have decided to build their lives.

The placement of the media at the 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 critical and opposing voice.

It is precisely 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 political control, keeping the media free and out of control, it is not just on the public interest, but a mission towards the future of the country and the preservation of democracy itself.

The President of the Republic has been attentive to 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 the role of the accountant is demanded by the executive, legislators and the judiciary.

Various experts have also raised the concern that by imposing fines, the law discourages and hinders the creators and financiers of online portals from continuing their activity. And after analyzing the provisions of the law on sanctions, this concern is real and evident.

Particularly in the current Albanian reality, the media has served as a vehicle for identifying and constantly exposing abuse of power. Under the new law, free speech professionals risk abandoning their mission.

After evaluating the conclusions, attitudes and opinions of international organizations, interest groups, or specialists and experts in the field of media, compared to the content of the provisions of Law no. 91/2019, it turns out that their concerns are just and should be taken into consideration.

Provisions of law no. 91/2019, contradict the Constitution of the Republic of Albania, Article 10 of the European Convention on Human Rights, and are not the spirit and principles set out in the Universal Declaration of Human Rights.

For this purpose, the Assembly should once again reopen the process of public consultation of this law and reflect on the suggestions and attitudes of interested stakeholders.

An in-depth and comparative study of the law as a whole, concludes that some of its provisions, and in particular Articles 14, 15, 29, 30, are not only not in harmony, but are contrary to:

- Basic constitutional principles of building a democratic state, legal certainty and proportionality;
- Constitutional provisions protecting the right to freedom of expression, freedom of the press and the right to information;
- the jurisprudence of the Constitutional Court of the Republic of Albania, whose decisions are binding norms of enforcement;
- They are not in line with the standards of the European Convention on Human Rights.

As these provisions are adopted, they violate not only the basic constitutional principles, but they also pose a risk to the public interest, which is guaranteed through the exercise of freedom of expression, freedom of the press and the right to information, all of which are indispensable rights. a democratic, free and constitutional order.

The adoption of these provisions essentially 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 disproportionate punitive measures that these provisions provide.

The entry into force of these changes will create an arbitrary and uncertain environment for electronic media operators, due to the pressure to apply unconditionally and subjectively to the disproportionate punitive measures provided for by the adopted law.

The disproportionate mechanisms of punishment that contain the approved legal changes create room for them 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 the powers that these bodies assume, has every opportunity to exploit this legal basis that allows for subjective interpretation, to unfairly punish any media that does not fit the political will of the majority.

This reality would produce intimidation and self-censorship, unlawful closure or suspension of electronic media, directly affecting the quality and objectivity of information, which would produce the public with facts other than reality that not only mislead society in seeking their rights, but also in fulfilling civic responsibilities for building and maintaining democracy itself.

Such a situation would place the country on the border of authoritarianism, which would pose a threat to Albania's future and integration, as well as to the existence of a functioning democracy itself.

Through punitive mechanisms and decision-making bodies that can impose punitive sanctions, it tends to bring political operators under political control, in particular electronic media, which would constitute a serious violation of the right to expression and information.

If the newly enacted legal norm does not improve, then problems, mainly that of political influence, would create the opposite effect, namely that of creating new concerns and problems, making it impossible to solve not only those that already exist but to rather it would create a real cacophony in a field that is facing its own regulatory difficulties.

This law would, as a consequence, reduce corruption cases and negative phenomena denounced by the media, which is an immeasurable and direct violation of the disclosure and denunciation of the truth and which favors the government and the disadvantage of the public interest.

The provisions of Article 14, paragraph 1, letter "c", and Article 15 of Law no. 91/2019 and their application in practice, infringes on the freedom of expression and the freedom of the right of the media, 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 / Its 3, 17, 22, 23.

Referring to these provisions of the Constitution of the Republic of Albania and the European Convention on Human Rights, it turns out that the Parliament of Albania with the adoption of Law no. 91/2019, has crossed the bounds of constitutional authorization, through the powers that the Albanian Parliament has delegated by law to the decision-making bodies of the Albanian Media Authority (AMA), creating the ground for direct violation of freedom of expression.

As independent bodies report to the Albanian Parliament on their activities, political influence and pressure on them is expected to come from the parliamentary majority. The Parliament 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 are taken. The case of the dismissal of Mr. ArbenMalaj from the position of a member of the Supervisory Council of the Bank of Albania may also be mentioned here.

These facts and the government's aggressive behavior towards the media as a whole and its attack on them with insulting and degrading words create the belief that the ruling majority will occasionally display its pressure for continued influence over its subordinate bodies.

Moreover, according to the conclusions of the prestigious international organizations, the real situation in which the Albanian media operates as a whole has deteriorated, and this is confirmed by:

- 7th place in the World Index of Freedom of the Media, according to the conclusions of the Reporters Without Borders;

- Conclusions of Freedom House annual report, according to which: "Media in Albania is partly free".

- The conclusions of the "Media Freedom Mission" of seven global organizations, stating that, "the Albanian authorities are not fulfilling their obligations under domestic law and international instruments to guarantee freedom of expression and the media, stressing that there has been a deterioration of the security, working conditions and access to information for journalists ”;

- The OSCE / ODIHR preliminary observation report on the June 2019 election process monitoring, which noted that, "the major media serve as lobbying platforms for their owners, thus questioning their editorial independence and imposing self-censorship". .

Also, in cases when the Albanian Parliament has been functioning through a limited number of members of parliament, 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 they are functional, clearly indicating that this body has fallen under the control of the executive, while the opposite should be the case.

In this way, it is understandable that even the AMA body, its members, will continue to be under the pressure and political pressure of the government to fulfill its purpose of appointing or placing in these decision-making bodies people associated with the latter. Under these conditions, and by analyzing the way AMA is set up and organized, it is also at risk that the way in which the Appeals Council is constituted and decided will fall under the significant influence of the ruling majority at all times.

Through the way the provisions of the law and the interpretative and regulatory power left to the AMA have been built, there is a risk that providers of electronic publications services, by denouncers of negative phenomena of society and maladministration, will become controlled the latter subject to audit and retribution. This would undermine the current position that the media as a whole has acquired, as one of the strongest instruments enabling the control and balance mechanism to function.

Generally analyzing the spirit of law no. 91/2019, it is estimated that media service providers, mainly those of electronic publications, appear to be increasingly placed in the position of the accused to prove their innocence in each case complained of. Such a position in the future will naturally bring about a standstill on their part, especially for publications pertaining to events or facts relating to the activity and public persons or to government scandals denounced for involvement in corrupt practices.

Articles 29 and 30 of Law no. 91/2019, lay down penalties and financial administrative sanctions which gravely violate the constitutional principle of proportionality as to the extent and manner of their execution, turning into an appropriate means for the exercise of public authority to exercise control over the media and the media market as a whole, with grave consequences for democracy and constitutional order.

Moreover, at the approved sanction levels, the margin of financial sanctions between the minimum and maximum levels is very high, while the law itself in determining these sanctions does not set any principles or orientation on the methodology of selection in a sanction concrete case, of the concrete measure of sanction, between the minimum and maximum level that the provision provides.

This legal uncertainty regarding the provision of financial sanctions creates not only legal uncertainty but also realistic scope for such sanctions to be applied in an impartial and disproportionate manner.

If provisions of this nature were to come into force, they, along with the ambiguity and scope created by the other provisions of the law justified above, would create every possibility that any online publishing service provider would be penalized permanently imposing unjust punitive measures, which, upon imminent execution, 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 providers of electronic publishing services, leading them to self-censor the materials they will publish, to ensure the continuation of their economic and professional activity.

This will result in a curb on all forms of exercise of the right of opinion, idea, comment, dissent, etc., which are the only means these providers have mainly against government, political forces or various corporations.

For the foregoing, with the sole purpose of improving the interference with law no. 97/2013 “On the Audiovisual Media in the Republic of Albania”, amended, in accordance with the Constitution and pursuant to Article 85, paragraph 1, I have decided to return for reconsideration 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 ", so that this law may be amended not only by the provisions of Articles 14, 15, 29, 30 justified above, but also by the whole provision his, 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 on behalf of the Assembly would worsen Albania's credibility as a democratic country and the rule of law.

Respectfully,

Ilir Meta

/Ora News.tv/