Venice Commission Opinion By Richard Clayton QC


On 19 September 2012, the Presidential Administration of the Republic of Azerbaijan requested the assistance of the Venice Commission in drafting a Law on Defamation, as part of the National Programme for Action to Raise Effectiveness of Protection of Human Rights and Freedoms and of the execution of two judgments of the European Court of Human Rights (hereinafter the Court) against Azerbaijan1, in which the Court found violations by Azerbaijan of Article 10 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (hereinafter ECHR).

Ms Herdís Thorgeirsdóttir, Ms Maria Fernanda Palma, Mr Richard Clayton, Mr Pieter van Dijk (former member) and Mr Gavin Millar (consultant, Information Society and Action against Crime Directorate of the Council of Europe), were appointed as Rapporteurs.

On 29 November 2012, a preliminary exchange of views between the Secretariat of the Venice Commission, the Department for the Execution of the Judgments of the Court and representatives of the authorities of Azerbaijan took place in Strasbourg, on a preliminary Draft Defamation Law submitted by the authorities (hereinafter the Draft Law). It was agreed that the co-operation would cover all related legislative provisions both in force (including criminal law, civil law and media law) and in preparation (see CDL-REF(2013)022rev).

On 9 – 12 April 2013, the working group travelled to Azerbaijan and met with the authorities and civil society. The Venice Commission is grateful to the authorities and the participants to the exchanges held during the visit for their co-operation.

On 14 May 2013, the Parliament of the Republic of Azerbaijan adopted amendments (promulgated by the President of Azerbaijan on 4 June 2013) to Articles 147 (Libel) and 148 (Insult) of the Criminal Code of Azerbaijan, introducing criminal liability for defamation committed “through a publicly displayed Internet information resource”. There was neither prior information of nor consultation with the Venice Commission with regard to the above amendments. These were transmitted to the Council of Europe at the request of the Secretary General of the Venice Commission.

On 19 May 2013, preliminary comments and recommendations of the rapporteurs were sent to the authorities of Azerbaijan, who committed themselves, by official letter sent to the Council of Europe on 29 May 2013, to submitting a revised draft law before end June 2013; a working meeting was to follow. No revised draft was however submitted.

The present Opinion is based on the English translation of the Draft Law as well as of related provisions of the Criminal Code, the Civil Code and the Law on Mass Media2, as provided by the authorities of the Republic of Azerbaijan. Since the translation may not accurately reflect the original version, certain comments and omissions might be affected by problems of the translation.

The Venice Commission points out that different versions of the Draft Law had been brought to the attention of its delegation during the visit to Baku. Following its request for clarification, the authorities confirmed that the version of the Draft Law to be considered by the Commission was the one initially submitted, without any explanatory memorandum or report, by the Presidential Administration.

The present opinion was adopted by the Commission at its 96th Plenary Session (Venice, 11-12 October 2013).

A copy of the full opinion is here.  

14 October 2013

Richard Clayton KC