HY RU EN

Grisha Balasanyan

Freedom of Information and Media Law in Armenia

Armenia’s Constitution was adopted on July 5, 1995. The first changes were made on November 27, 2005. Other changes were made on December 6, 2015. The right to receive changes made to the Constitution was declared as a constitutional right and one of the fundamental human rights.

The current Constitution guarantees freedom of expression (Article 42). The freedom of speech and expression cannot exist if its basis, the freedom to receive information, doesn’t exist. Article 52 guarantees: “That everyone the right to receive information on the activities of state and local governance bodies and serving officials and to be able to access documents. The right to receive information can only be restricted by law-to defend the public interest or the fundamental rights and freedoms of others.”

The Constitution has provided specific guarantees, while the regulations and application mechanisms have been left to laws governing the sector. Armenia’s “Law on the Right to Information” was passed on September 23, 2001 and entered into force on November 15, 2003. The application of the law covers not only state and local governance bodies but also organizations of public significance – those having a monopoly or dominant position in the commercial market, as well as non-government organizations providing public services in the health, sport, education, cultural, social security, transportation and communication and utility sectors. Thirteen years have passed since the law was adopted, ample time to regulate the sector and to launch norms regarding freedom of information, However, to date, the application of the law faces serious problems in the state and local governance sectors. While the primary regulations and mechanisms are clear, in practice, reporters and citizens face a number of hindrances and difficulties in receiving information. One of the main reasons is that officials in state bodies controlling information do not provide it. They are ill-informed when it comes to their legal obligations in this regard. Also, by not releasing information, they are trying to prevent the outflow of information and the resultant public response. In effect, they are trying to conceal certain information from the public.

Armenia’s “Law on the Mass Media” guarantees news outlets and their reporters the right to work without illegal restrictions. It reaffirms their constitutional right to search for, receive and disseminate information. It prohibits censorship, the hindrance of reporters to carry out their legal activities, to expose the sources of information regarding judicial acts without the necessity of revealing serious crimes, and demands that state bodies not discriminate among reporters. Armenia’s Criminal Code envisages specific guarantees for the right of reporters to receive information. Article 164 defends the professional and legal activity of reporters, including the right to receive information, which constitutes a reporter’s professional and legal activity.

Hindering the professional and legal activity of a reporter, or opposing a reporter from distributing or refusing to disseminate information, is punishable by a fine from fifty to one hundred and fifty times the minimum salary, or a maximum of one year of corrective work. The same actions, that are performed by an official by taking advantage of one’s official position, is punishable by performing a maximum of two years’ corrective work, or by a maximum of three years’ imprisonment, or by depriving them of serving at certain positions or performing certain activities for a maximum of three years, or without this.

This article was first applied in 2004. The court found a bodyguard, who had assaulted reporters, not allowing them to take pictures, guilty. The court sentenced him to six months’ imprisonment. To date, this was the first time in Armenia when an individual was sentenced to imprisonment for illegally hindering the work of reporters and restricting their right to receive information. In other cases, first law enforcement bodies avoid applying the article regarding the hindering the professional and legal activity of reporters. If they do apply the law, what results is a “showcase” examination and the courts merely declare a symbolic punishment.

The most widely spread risks and challenges (related to FOI / legal aspects) for investigative reporters in Armenia

Armenia’s “Law on Information Freedom” delineates a five-day deadline for responding to written information requests. If additional work is needed to provide information, a deadline of 30 days is given. The applicant must be notified of the delay within five days of receipt of the application. The reasons for the delay must be given as well as the final deadline for provision of the requested information. If the information requested has already been published, then there is a five-day deadline to provide the applicant with information regarding where the information can be accessed. The law also has norms restricted the freedom of information. In particular, the person controlling the information can refuse to provide it if it contains state, service, bank or commercial secrets, if it violates secrets of a personal or family nature, including correspondence, telephone conversation, postal, telegraph and other communication secrets, if it contains prior examination secrets not subject to publication, it reveals data requiring accessibility restrictions of professional activities (medical, notary, legal secrets), if it violates copyright laws and/or related rights. If a part of the information requested contains data whose distribution is subject to refusal, information is provided regarding the remainder.

When refusing to provide information, state agencies must substantiate the refusal by referring to applicable laws. The accessibility of official information in Armenia continues to be a major problem. While officials accept that the provision of information is their obligation, practice shows the accessibility of such information remains insufficient. For example, state bodies often refuse to provide information of a sensitive, public nature, merely by arguing that it contains secrets without specifying what those secrets are. Such explanations to written information requests indicate that state officials seek to avoid providing certain information in an attempt to cover-up some serious issue. For example, a reporter from the Investigative Journalists NGO (IJ) wrote a piece regarding three individuals, all from the same family, engaged in usury. They’d swindle people out of their apartments. The reporter wrote to the police asking how many and what kind of complaints, if any, had been filed against the three individuals within the past five years. The reporter also wanted to know the resolution of the complaints and if criminal charges had been brought. The police refused to provide such information arguing that it would violate the secrecy of the individual and their family life. The police merely noted the corresponding article of the law, and did not substantiate how the provision of the information would violate personal freedom or if the defense of this freedom outweighed revealing a criminal act. Afterwards, the IJ sued the police in civil court, demanding release of the information. Five months later, during an examination of the case, the court presented the information. The court debate was thus ended. Meanwhile, the reporter had to wait five months for information that should have been provided within five days.

Such cases are the rule more than the exception. State agencies use this method to avoid providing information. Frequently, their responses to information requests are incomplete – quite unsatisfactory for investigative reporters. Sometimes, they don’t reply at all.

The average impact of investigations in Armenia concerning FOI / legal changes.

The receipt of information from state agencies within the legal 5-day period impacts the quality if investigative reporting. It was on October 15, 2015, twelve years after the law was adopted, that a protocol for the registration, classification and preservation of information drafted by a person in control of information or that sent to him/her. It specifies that inquiries sent by email must also be taken into account and registered. The “Law on Freedom of Information” requires that written inquiries must be signed. Certain state bodies, for example the National Assembly, have regarded email inquiries as unsigned and thus ignored. Email inquiries will facilitate the work of reporters when requesting information. However, in general, it is not enough since reporters, especially investigative reporters, are seen as “opponents” by many state agencies and officials. Thus, they spare no effort in making the process of releasing information complicated. For example, reporter Zaruhi Mejlumyan wrote to the Prosecutor General’s Office (PGO) for information when she was preparing an investigative piece on the criminal case of a person sentenced to life imprisonment. The convict had given his prior permission, in writing, for the release of the case information. The PGO failed to respond to the reporter’s request. Two months later, Mejlumyan sent another request. After the PGO again failed to respond, the reporter took the PGO to court. The trail lasted 15 months. To justify its inaction, the PGO presented ridiculous arguments. For example, the PGO argued that the reporter has no right to refile a request with the same state body on the same issue within a six-month period. The law does specify such a proviso but it relates to rights abuses – when a reporter, having received an adequate response, again and again files requests with the same agency within a six-month period. In Mejlumyan’s case, the PGO wasn’t responding at all. This argument by the PGO had nothing to do with the case at hand. It’s been one month this the courts have found in favor of Mejlumyan. But no information has been forthcoming. Thus, the reporter must now apply to the Compulsory Enforcement Service to see that the court’s decision is carried out. It turns out that an investigative reporter must wait several more months to get an answer from a state agency. Information can grow “outdated” over time and no longer be usable.

What can be done to improve?

The only guarantee that the sector can improve is if civil society and reporters become more pro-active. The law, while comprehensive, must be applied. Reporters especially must use the law to their own ends and even go to the courts to defend their rights. Another aspect of the struggle is for reporters to write on the issue of freedom of information. The public must be informed as to its rights regarding information accessibility.

a)    While investigative journalism, with its varied and in-depth coverage, can improve things when it comes to receiving information, state agencies continue hindering the process. For example, in 2014 the Investigative Journalists NGO took Armenia’s Ministry of Nature Protection to court, demanding that the ministry be forced to hand over copies of import/export licenses pertaining to CITES (the Convention on International Trade in Endangered Species of Wild Fauna and Flora). Prior to going to court, the reporter had written to the ministry, requesting pertinent information for an article being written on Armenia and the illegal trafficking of endangered animals. The ministry refused to hand over the information, arguing that the permits are subject to restrictions as stated in the “Law on the Freedom of Information”. The IJ reporter, writing an article on the illegal trafficking of primates, videotaped the same ministry official, who had refused providing the information, freely give it to foreign reporters visiting the ministry. The trial lasted one year and the court obligated the ministry to hand over the requested information. Based on this information, a series of articles were published that reverberated internationally. A criminal case was even launched. The trial was a precedent in terms of freedom of information. It seems the ministry has learnt its lesson and is complying with information requests. Other government agencies have also heard about the trial and are responding to media information requests.

b)    the legal situation for FOI / the legal security of the investigations

c)    Armenia’s Criminal Code contains numerous articles restricting the publishing of information. In particular, information on personal and family life medical secrets, the secrecy of correspondence, telephone conversations and other broadcasts, espionage and the publication of state secrets, violations of the rules regarding documents containing state secrets, and articles regarding the publication of preliminary and post examinations. The “Law on Mass Media” also envisages publication restrictions on certain information. Thus, the publication of information deemed secret or that which espouses punishable criminal acts, as well as information violating the inviolability of personal or family life is banned. The dissemination of videotaped information is also prohibited if it was recorded without informing the individual beforehand, except in those cases when the publication of such information is in the public interest.

d)    Prior to May 2010, slander and insult were criminally punishable. For the past six years, due to a change in the law, such trials have been forwarded to the civil courts. After the change, numerous civil suits were filed with the courts. Reporters were the targets. Large compensation amounts were demanded of reporters charged with slander and insult. Insult could fetch 1 million AMD and slander, 2 million. These are the maximum amounts defined by law. In a majority of cases, the courts would sustain the demands of the plaintiff, thus placing a heavy financial burden on reporters. In this way, attempts were made to silence reporters. The threat still exists and reporters can wind up in court accused of slander. But the compensation amounts have been drastically reduced. Such legal procedures can, at any time, be used against reporters, especially investigative reporters, who are pressured to reveal the sources of their information.

Three main FOI / legal obstacles for investigations in Armenia

Obstacles for investigative journalism in Armenia are placed primarily by state bodies:

  1. They do not provide information
  2. They violate the deadlines for the provision of requested information (sometimes it takes them 40-60 days instead of the 30-day maximum)
  3. The information provided is often incomplete/inadequate (sometimes they note that the requested information is available at a certain website, only to find that it isn’t)

State agencies are not interested in working in a transparent manner. In turn, this leads to restrictions on information freedom and artificial obstacles. Given on the one hand, that news outlets do not adequately follow-up on freedom of information issues, and on the other, the fact that there is a lack of, or inadequate, applicable mechanisms by which to punish officials, these problems, which have accumulated over the years, remain unresolved. Since officials who continue to grossly violate the right of citizens, and reporters, regarding information freedom, go unpunished, the three fundamental problems noted above remain. This is a result of on-going impunity.

Any benefit in professional FOI / media law exchange on a transnational level

Most media representatives in Armenia, with few exceptions, are not closely linked to and haven’t cooperated with foreign reporters or professionals engaged in matters of freedom of information. This complicates matter more for reporters in Armenia. For example, when it comes to covering the international activities of Armenian officials and obtaining corresponding data. Not having the necessary contacts or professional support, sources of information for reporters are limited. Such cooperation is vital especially for in-depth investigative pieces of international scope.