CHECHNYA LINKS LIBRARY

Access to information in Chechnya (legal analysis)

Boris Panteleyev
legal expert of the Centre for Journalism in Extreme Situations

Special to Prague Watchdog

The true situation with journalist’s rights and the possibility to apply in practice the standards of freedom of speech becomes most evident under extreme situations. The situation with mass media in the Chechen Republic since 1994 until today may undoubtedly be described as such.

Our analysis shows that the generally accepted international standards, as well as national legislation, virtually do not function within the given territory and are ignored by the very official authorities. It is paradoxical as the military campaign in Chechnya started formally under the slogan of restoration of the constitutional order. However, the “constitutional order” itself is perceived in a very selective way and the generally accepted standards of freedom of speech for certain reasons do not fall under the protection of federal authorities.

Moreover, the monitoring shows that there are new examples emerging of how in the name of protection of abstract constitutional order very specific and concrete rights of citizens protected by the constitution are violated; the citizens include those living in the Chechen Republic as well as all citizens of the Russian Federation wishing to receive objective information about the events in Chechnya.

Violations of the access to and dissemination of information in the Chechen Republic are not of a sporadic, but rather fundamental character.

For example, the current wording of the Mass Media Act of the Russian Federation in Article 1 defines an exceptionally critical provision which bans restrictions of the journalist’s rights as well as mass media by law not related to mass media. However, this provision of this piece of primary legislation has been violated in practice many times. Very typical violations are related to the conditions of access to information in Chechnya since the very beginning of military operations.

There is a broadly known provision of Article 48 of the Mass Media Act of the Russian Federation which sets forth that the essence of accreditation consists in the following: once the accreditation is granted, “the institutions which accredited journalists shall be obliged to notify them in advance about their meetings, conferences and other events, to supply them with verbatim reports, minutes and other documents, and to create favourable conditions for making entries”. By virtue of this act the accreditation procedure is used to regulate the work of journalists within any given governmental authority, public institution, association, organisation, etc. Apart from that, the Russian Federation has the Foreign Journalist Accreditation Institute at the Ministry of Foreign of Affairs.

However, with respect to the situation of journalists in Chechnya the spirit and letter of the Mass Media Act of the Russian Federation has been openly and seriously scorned. In January 1995, there was an attempt on behalf of the government to include additional conditions into the journalist’s accreditation in Chechnya in compliance with Article 29(3) of the Interior Forces Act of the Russian Federation. There are new departmental measures emerging attempting to apply bureaucratic logic and military policy to mass media.

An important role in confirming the validity of the given conclusion is played by the decision of the Constitutional Court of the Russian Federation dated 31 July, 1995 on the investigation of the constitutionality of the Presidential Decree No. 2137 dated 30 November,1994 on Measures to Restore Constitutional Law and Order in Chechnya and several other acts. The investigation among others related to the resolution No. 1360 of the Government of the Russian Federation on Ensuring State Security and Territorial Integrity of the Russian Federation, Law, Civil Rights and Freedoms, Disarmament of Unlawful Armed Units in Chechnya and Bordering Regions of the North Caucasus dated 9 December, 1994.

The above government document contained a special provision (clause 6(2)) prescribing the Temporary Information Centre at the Press State Committee of the Russian Federation to revoke with immediate effect accreditation of those journalists working in the armed conflict zone who communicate false information and promote national or religious hatred.

The Constitutional Court of the Russian Federation in its decision stated that the Mass Media Act (Chapter 5, Article 48) gives an exhaustive list of conditions under which the journalists may loose their accreditation. Therefore, the above mentioned standard introducing new conditions and procedures to revoke a journalist’s accreditation which are not set forth in the legislation “violates Article 29(4) and (5) laying down the freedom of information, Article 46 guaranteeing judicial protection of rights and freedoms as well as Article 55(3) of the Constitution of the Russian Federation”.

Thus the anti-constitutional character of acts explicitly violating the journalist’s rights in Chechnya was recognized legally as well as by the higher judicial authority of the Russian Federation as early as in 1995. However, the resolution of the Constitutional Court of the Russian Federation did not become the guiding document and it was effectively ignored. The newly established official information centres again see the accreditation as a method of cutting the activities of independent journalists in the Chechen Republic.

The second legal issue which extremely complicates the activities of journalists in Chechnya is the so called terminology confusion with far reaching consequences. Ever since the armed conflict began, the official authorities have not been able to decide what name to put to what is really happening in Chechnya: a war, separate armed conflicts, an anti-terrorist operation, police actions, a border conflict or gangster stripping?

The right of official authorities to limit legally the freedom of speech and other constitutional civil rights within the whole territory of the federal entity depends on the unambiguous and clear answer to this question.

From the viewpoint of the international humanitarian law this issue has a rather simple solution: the war has either been officially declared or not. The use of the regular armed forces for its own direct purposes within its own country is intolerable in a civilized world. Pursuant to Article 87 of the Constitution of the Russian Federation it is President of the Russian Federation who is authorised - following a special procedure - to declare the state of war or martial law within the whole territory of the country or in individual regions under the conditions of aggression. This is always done – as well as in the case of state of emergency pursuant to Article 56 of the Constitution of the Russian Federation – publicly with immediate informing of representation bodies. In the case of declaration of war, the international standards allow a temporarily abeyance of certain constitutional civil rights and freedoms in the part or the whole of the country where the war has been declared. For example, the freedom of movement within the country may be restricted, or freedom of gathering and dissemination of information on military and related topics.

As we know from the two Chechen campaigns such a consistent legal approach is not what we have experienced. Military operations are not admitted officially or they are ambiguously described using different words. However, restriction of civil rights and freedoms are in fact introduced at will on the level of verbal orders of individual military unit commanders within territories under their control without any official declaration of war, however, under pretence of military operations, special actions, etc.

In such a situation we can talk about the triumph of double standards when on one hand the fact of the conducting of military operation has not been officially admitted, however the constitutional guarantees of individual rights, such as Article 29 of the Constitution of the Russian Federation referring to freedom of gathering and dissemination of information, are not longer effective. Although formally, military authorities and soldiers of the forces of the Ministry of Interior as well as other law-enforcement authorities even under the conditions of “anti-terrorist operations” are still bound in particular by the Constitution, Criminal and Criminal and Procedural Codes of the Russian Federation.

...or a "counter-terrorist operation"?

There is one more violation of applicable legislation related to the restriction of freedom of speech and it concerns the ungrounded and broad interpretation of the term and the scope of the anti-terrorist operation.

Generally, the level of local limitation of military operations pursuant to Article 3 of the Anti-terrorist Fighting Act of the Russian Federation cannot be construed arbitrarily. Military decisions are limited by the currently effective legislation even in this case. For example, the term “anti-terrorist operation” in the legislative sense is justified only in relation to “individual regions or water areas, transport means, buildings, structures, installations, facilities as well as adjacent territories or water areas, within the borders of which the operation in question is conducted”. In any case, it is not right to expand the effect of such an operation to the whole territory of the Russian Federation.

However, in practice the military authorities try to expand the sphere of their exclusive power having no grounds for it and to close as large areas of the Chechen Republic for journalists as possible. This is done for example under the pretence of the fact that there are in fact requisitions in the above act on the freedom of movement. In particular, pursuant to Article 8 “the civil right to freedom of movement, choice of place of residence within the Russian Federation could be restricted at the frontier, closed military stations, closed administrative and territorial units, in areas of environmental disaster, within individual territories and towns should there be a threat of propagation of infectious and mass non-infectious diseases or poisoning where special conditions for economic activities and living of population are introduces, as well as within territories with declared state of emergency or martial law”.

In this case the terms “frontier” [“pogranichnaya zona”] or “border area” [“pogranichnaya polosa”] are construed at will with respect to journalists. Pursuant to legislation the frontier is only the area directly adjacent to the border of which five kilometres is the frontier zone and twenty kilometres is the zone of frontier regime. After those 20 kilometres, such as the case of the Russian-Georgian border in the area of the Chechen Republic all the statements of military officials on the special status of the territory will not stand up to legal criticism.

Even the legal argument referring to Article 47(7) of the 1992 Mass Media Act of the Russian Federation does not function here. Pursuant to it “a journalist is entitled to visit specially protected places of natural disasters, accidents and catastrophes, mass disorders and mass gatherings, and also sites where a state of emergency is declared; to attend meetings and demonstrations”.

Accreditation rules in Mr. Yastrzhembsky's style...

The currently applied Accreditation Rules for Mass Media Representatives of the Office of the Aide to President of the Russian Federation of Sergei Yastrzhembsky despite all the principles of the Mass Media Act do not set forth the legal regime of accreditation by a government body, but the conditions for information gathering within the territory of one of the entities of the Federation. The working conditions for journalists as set forth by the Rules, that is by the departmental subordinate legislation, are substantially impaired when compared to the guaranteed federal legislation.

Based on the generally accepted provisions of Article 48 of the Mass Media Act, the subject of activities of a journalist accredited at a specific organisation is the information on the course of meetings, consultations and other events held by this organisation, but not all information on everything that is going on in the whole federal entity.

Nevertheless, this standard turns to be ineffective in the Chechen Republic. Representatives of power and administrative bodies of the country repeatedly took measures against journalists not having the accreditation required by the Rules to cut their professional activities related to information gathering in Chechnya.

Moreover, pursuant S.13 of the Rules, the journalists are prohibited from independent movement within the Chechen Republic and from interviewing soldiers without a permission granted by representatives of press-centres and power structures of the Russian Federation even when they are accredited. Similar actions violate the very basic rights of journalists guaranteed by Article 27(1), Article 29(4) and (5), Article 55(3) and Article 56(1) of the Constitution of the Russian Federation, and Articles 1, 38, 47, and 48 of the Mass Media Act of the Russian Federation.

Pursuant to Article 55(3) of the Constitution of the Russian Federation, the human and civil rights and freedoms may be restricted only by a federal law. Based on this, restrictions imposed by adopting subordinate or local legal acts are categorically forbidden.

...violate the Constitution

As all know, Sergei Yastrzhembsky is not heading the operative staff which controls the anti-terrorist operation and therefore he is not entitled to regulate activities of mass media staff within the territory of anti-terrorist operations even if the Anti-terrorist Fighting Act is applied. The Rules set forth also other conditions restricting the rights of journalists guaranteed by law.

Pursuant to Article 2(10) of the Mass Media Act “the journalist shall be understood to mean a person who edits, creates, collects or prepares messages and materials for the editor's office of a registered mass medium and is connected with it with labour and other contractual relations or engaged in such activity, being authorized by it”. However, S.5 of the Rules contradicts this standard and sets forth that no free-lance mass media staff (that is persons processing information upon the authorisation of the editor’s office without having any contractual relations with it) “may be accredited by the Office of the Aide”.

The requirement to produce together with the accreditation application also a copy of an insurance policy of the journalist (under S.6) once again confirms that the Rules do not set forth the legal regime for the accreditation as stipulated by the act, but conditions for information gathering within the territory of one of the entities of the Federation. Otherwise, no similar requirement would have any sense. This is obviously an extra requirement for journalist’s accreditation at the government body.

The Rules grant journalists accredited with the Office of the Aide a “special” right to participate in the explanation of military operations, however under the condition that they were on time included into the relevant group formed by the Office and approved by the administration of the power structures of the Russian Federation. The conclusion drawn from this is that without formal accreditation as well with formal accreditation if a journalist is not included into the official group, professional journalist activities in the Chechen Republic are banned. Adoption of any similar local regulation by any department is clearly unlawful.

S.14 of the Rules stipulates that a mass media representative may lose the accreditation due to dissemination of facts denigrating honour and dignity of soldiers or facts not complying with the reality of the course of the anti-terrorist operations in the North Caucasus, if this is confirmed by a final and conclusive decision of a court. This provision contradicts Article 48(5) of the Mass Media Act as well as Article 9(1) of the Civil Code of the Russian Federation (“Citizens and legal entities enjoy their civil rights at their own discretion”). Honour and dignity of Russian soldiers are personal intangible rights belonging to the soldiers themselves and not to the Office of Sergei Yastrzhembsky. Existence of a similar condition substantially extends legal grounds of the journalist’s accountability when compared to the act which contradicts Article 55(3) of the Constitution of the Russian Federation.

Bearing this in mind one may draw a conclusion that the Accreditation Rules at the Office of the Aide to President of the Russian Federation introduced in 1999 for journalists working in Chechnya are in fact a piece of local legislation contradicting the Constitution of the Russian Federation and clearly aiming at restricting rights of mass media staff.

Indeed, if journalists accredited based on these Rules “are prohibited from independent movement in the Chechen Republic and from interviewing soldiers” (S.13), such a “favourable position” is hard to be called anything but a clear violation of the primary federal act.

The Rules approved by the resolution No. 1538-P of the Government of the Russian Federation dated 1 October, 1999 again state conditions directly contradicting the conclusions contained in the decision of the Constitutional Court of the Russian Federation dated 31 July, 1995 stating that revocation or rejection of accreditation based on the contents of earlier publications (S.14) violates the journalist’s rights and impedes their professional activities.

Pursuant to Article 48 of the Mass Media Act of the Russian Federation a journalist may lose accreditation only under two conditions: if the journalist breaches the accreditation rules (which pursuant to Articles 1 and 5 of this very act may not include conditions limiting freedom of mass information and journalist’s rights) or if the journalist disseminates facts not corresponding to the reality, denigrating honour and dignity of the staff of the accrediting organisation and this is confirmed by a decision of the court which became effective.

Therefore, the condition on the possibility to revoke accreditation should the journalist refuse to apologise for disseminating corrupted facts as set forth in the Rules is unlawful.

No other cases, including those related to the “refusal to apologise”, may form legal grounds for the revocation of accreditation. Pursuant to Article 29 (3) of the Constitution of the Russian Federation, nobody may be forced to express his/her opinions and beliefs or to renounce them. Thus the requirements to apologize are undoubtedly unlawful.

From the legal viewpoint this is quite a simple matter. However, irrespective of the explanation of the Constitutional Court of the Russian Federation, unlawful restrictions related to journalists are in force until today.

Judicial protection does not work

It is disturbing that regardless of numerous violations of journalist’s rights the mechanism of judicial protection of the freedom to access information under Articles 140 and 144 of the Penal Code of the Russian Federation fails to function. Official actions in relation to soldiers who in some ways obstructed the work of journalists in the Chechen Republic do not result in holding the guilty person liable.

There are many cases when provision of information was denied and professional activities of journalists were obstructed and they fall within the effect of these provisions. However, real examples of application of these standards in the Chechen Republic under the common or military circumstances have not been registered.

Thus the situation with the freedom of speech in Chechnya until today remains outside of the legal framework as set forth by both international and domestic legislation.

(T)