SUMMARY

This report looks at the situation of media freedoms in Albania, more than a decade after the Balkan nation started a transition from totalitarianism to democracy and rule of law. Like the progress of that transition in general, respect for media freedoms and other human rights has followed a rough path of ups and downs since 1990. While Albania has left behind the vicious suppression and isolation that marked its decades under Stalinist-style governance, the legacy of that regime continues to haunt it. The findings of this report suggest that the transition is far from over.

The report, which covers for the most part events of 2000 and 2001, focuses on three particular areas of concern: intimidation and violent attacks on journalists, defamation trials against the press, and political interference with the allocation of state advertising to media outlets. The report is based on three weeks of research conducted in Albania in late 2001, primarily through interviews with Albanian journalists, editors, media managers, media development experts, government officials, and lawyers. The findings on defamation trials and state advertising practices are based to a large extent on documentary materials, such as judicial decisions, trial records where available, and statistical surveys. 

Human Rights Watch investigators found that Albanian journalists, especially those based in provinces outside the capital Tirana, are subjected to widespread intimidation and physical attacks. Journalists have been targets of serious and repeated threats against them and their families, unlawful and arbitrary arrests, and severe beatings and other physical assaults. Not only journalists affiliated with opposition newspapers and televisions stations, but also reporters working for unaffiliated outlets have been so targeted. What makes such violence even more troubling is that the perpetrators are often police officers or government officials who retaliate against press criticism or reporting of official misconduct, such as alleged corruption or human rights violations. 

Recently, intimidation and physical assaults against the media reached a peak during the June 2001 election period and the subsequent run-offs. The report describes three serious incidents from that time, which suggest that the central and local authorities were responsible for widespread and possibly coordinated actions to restrict the free flow of information during the election period. At all times, however, the Albanian police tend to interfere with the right of the press to cover police activities, betraying a lack of awareness about police accountability and the media's role as a public watchdog in a democratic society. But the police are by no means the only institution that ignores the right of the public to be informed on issues of general concern. Albania's new Constitution and its 1999 freedom of information law have yet to be implemented to dismantle the inherited wall of official secrecy that surrounds much of the public administration, including the judiciary.

Violence against journalists goes virtually unpunished in Albania: not a single person implicated in the incidents detailed in this report is known to have been disciplined or prosecuted, despite the publicity and protests that these incidents have generated. The primary responsibility to investigate such incidents and hold the perpetrators responsible rests with the Ministry of Interior and, in more serious cases, with the public prosecutorial system. Yet, both of these agencies have failed dismally to meet their responsibilities, breeding a culture of impunity that is extremely detrimental to the development of a free and vibrant press. It is imperative that the Albanian authorities establish a formal and structured process for the internal investigation of police misconduct in their relations with the media. Similarly, the public prosecutor's offices should be instructed to investigate such allegations diligently and as a matter of priority. The Albanian Ministry of Interior did not respond to Human Rights Watch's written request for information on some of the incidents described in the report.

The analysis of six defamation trials in the second part of the report exposes another gap between constitutional and international guarantees of media freedoms and respect for those freedoms, by Albanian courts in particular. The observed violations are a combined result of flawed-and possibly unconstitutional-defamation laws, and the ways in which the Albanian courts apply such laws. Albanian law contains criminal sanctions, up to a maximum of two years of imprisonment, for ill-defined offenses of libel and insult. Human Rights Watch maintains, as a matter of principle, that criminalization of defamation is an unnecessary and disproportionate measure that, in itself, violates freedom of expression and press freedoms. 

In addition, Albanian criminal defamation laws contain some particularly problematic provisions that grant special protections to state officials, such as assistance from the public prosecutorial system in proving charges of official defamation (usually against journalists). Such privileges, which private citizens do not enjoy, are wholly unjustified and inconsistent with international human rights law and jurisprudence-and should therefore be repealed. International human rights law recognizes that media freedoms are wider, not narrower, for coverage of the activities of politicians, government officials, and other public figures.

Albania's civil defamation laws, which give victims of defamation the right to seek money damages, suffer from unclear and ill-defined standards of liability, evidence, and compensation. Such legal uncertainty about the limits of permissible speech can have profound chilling effects on the media. The excessive and disproportionate damage amounts ordered by the courts in the defamation cases reviewed in this report-with almost no discussion of the rights and principles at stake-compound the dangers of that flawed legal framework. The failure of the Albanian judiciary to apply civil defamation laws in ways that are consistent with media freedoms makes the need for thorough legislative reform pressing.

The six defamation trials reviewed in this report were fraught with violations of the journalist defendants' rights to a fair trial and resulted in verdicts undermining the right to free expression. One of the most serious violations involves the principle of presumption of innocence, with the courts placing the entire burden of proof on the defendants in criminal defamation cases. In five of the six criminal cases, the journalist defendants were found guilty and convicted for failure to prove the truthfulness of their published statements or their good faith. The courts required some of the defendants to prove the truth not only of factual statements, but also of opinions and value judgments that are, almost by definition, not susceptible to such proof. In each of these cases, the presumption of innocence, to which all defendants in a criminal trial are entitled under the Albanian Constitution and human rights treaties, was turned upside down into a presumption of guilt.

The Albanian courts also failed to recognize the right of journalist defendants to withhold the identity of confidential sources, an essential element of media freedom. More generally, the court judgments suffer from poor reasoning and lack of sufficient evidence on the record to justify the criminal and civil sanctions against the journalist defendants. The refusal of judges and prosecutors in some of the cases to take into account relevant evidence beneficial to the defendant suggests bias on their part. In other cases, the research found serious violations of the defendant's due process rights, such as the right to be heard or the right to defense.

The most worrying shortcoming of the judgments, however, is their failure to acknowledge the human rights implications that are bound to arise from application of defamation laws. This is, more simply, a failure to take rights seriously. In none of the six cases did any of the courts, at any level of the judicial pyramid, make a clear attempt to balance a public person's right to reputation with freedom of the press and the general democratic interest in promoting public debate. Instead, they ignored the defendants' arguments based on the Albanian Constitution and the European Convention on Human Rights. The performance of the High Court, Albania's supreme court, is particularly disappointing in view of its special responsibilities to secure respect for fundamental rights. The High Court summarily dismissed, without discussion, the appeals filed by the defendants in three of the cases, in spite of the serious rights violations committed by the lower courts.

The third part of the report looks at a persistently controversial issue for the Albanian media: the allocation by the government of state advertising. The relatively large volume of such advertising, which is comparable in value to the entire private sector advertising, gives the Albanian government significant financial leverage over the press. In the absence of effective control mechanisms, that unchecked financial power is abused for purposes of political and personal profit.

Government agencies tend to use their own advertising as both a stick and a carrot. While they reward sympathetic media with generous contracts, they use financial blackmail to pressure or retaliate against critical outlets. Human Rights Watch research found that such interferences with editorial freedom can be sustained and coordinated, with government agencies across the board imposing virtual advertising boycotts against critical media. The report documents one recent case in which the biggest circulation Albanian daily became victim of such a boycott. At the same time, ministers and other senior officials use their own share of advertising leverage to retaliate against criticism of their personal performance or of their respective institution. Both types of official retaliation grew particularly intense in 2000 and 2001.

Misallocation of state advertising is facilitated by flaws in the governing laws and regulations. Vague and inconsistent standards create room for biased or corrupt officials in charge of state advertising to abuse their discretion. A large part of those abuses could be mitigated, however, by stricter financial controls and better enforcement of existing laws. Any internal or external auditing mechanisms currently at work appear to be grossly ineffective. One example of a blatant violation of public procurement laws, involving a major government advertiser (the National Privatization Agency), is described in the third part of the report.

Another source of serious concern for media freedom and independence in Albania is government subsidies, which are usually shaped as compensation for carrying massive public awareness advertisements. While it is up to each media outlet to accept or refuse such subsidies, only an independent body and transparent procedures could ensure their fair and non-intrusive allocation. Instead, in Albania, allocation of these subsidies to media outlets is handled directly by the government, which uses them single-handedly to reward-and so give an unfair competitive advantage to-media of their choice. The report examines a recent case of selective subsidization, involving a major newspaper, as well as the resulting distortion of competition in the press market.

The violations described in the report-violence and intimidation, criminal prosecution, exorbitant damage awards, and financial pressures-have a combined chilling effect that undermines the development of a free, objective, and professional media in Albania. Some of the consequences, such as the increasing numbers of journalists who abandon their profession or leave the country altogether-as three journalists interviewed for this report have done-are more visible. The impact on those who remain, at the price of learning to censor themselves, are harder to measure, but equally serious. The chilling effects of violence and intimidation against Albanian journalists and their families are the most direct and most overwhelming-especially when coming from delinquent police chiefs and other government agents whose job it is to enforce the law. The prospects of facing criminal prosecution by overzealous prosecutors, when charged with defamation by powerful officials, can be no less chilling and professionally disruptive. Financial pressures, resulting from court-ordered sanctions for defamation or state advertising cut-offs, can also effectively restrain the press in Albania's competitive media market. By many insider accounts, they trigger tides of self-censorship that start from media publishers or editors and reach all reporters down the line. In sum, the serious interferences with media freedoms become a recipe for turning the Albanian press into a lame public watchdog.