Content Regulation / Censorship, Defamation / Reputation, National Security, Political Expression, Press Freedom
Le Ministère Public v. Uwimana Nkusi
Closed Expands Expression
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The Albanian Court of Appeals held that a statement made by a member of parliament was not defamatory of a government minister. In a parliamentary session, the parliamentarian had accused the minister of bribery, which was then reported on by the national media. The minister sued the parliamentarian for defamation and a district court found in his favor. The Court of Appeals reversed the lower court’s decision, finding that the parliamentarian’s statements were protected by freedom of expression and that there had been no damage to the minister’s reputation.
On October 20, 2011, Taulant Balla, a Member of the Parliament of the Republic of Albania, attended a parliamentary session where Genc Pollo, the Minister of Innovation and Information and Communication Technology, reported on projects undertaken by his Ministry. In this session, Balla criticized the lack of transparency in the process of an international bid for a national broadband network, which was Pollo’s direct responsibility. He said: “[Pollo] has a very big problem … that he was reluctant to speak, received 1.2 million Euros. He received 1.2 million Euros in bribes from a company and talked about everything but did not talk about the topic for which this session is about. Expressing gratefulness to a company that will make an investment worth 12.5 million Euros, shows that you also have your share. This Government, which at least receives 10%, and Mr. Pollo justifies the 1.2 million Euros received for this international bid…..”
The session was reported on in the media, and significant television news bulletins covered it: Top-Channel started its news edition under the title “Pollo, 1.2 million Euro bribe”; Ora-News repeatedly showed the news “Balla: Minister Pollo to resign”; News 24 said “Parliament, Balla-Pollos: You took bribes, we will send the files to the prosecutor’s office”; Vizion Plus said “Debates and lawsuits in parliament”. Panorama and Skekuli newspapers also covered the story on their front pages. Balla also filed a criminal report to the Prosecutor’s Office of the Judicial Dictric of Tirana for violations of and conflicts of interest in the exercise of Minister’s duties.
Pollo filed a defamation suit, seeking damages, on the grounds that Balla’s statements were defamatory and had damaged his reputation and dignity, and that the newspapers had violated the Civil Code of Albania, Article 608, 609, 625/a and 640. Balla maintained that he had not defamed Pollo as the statements were intended to identify corruption for the public and were accompanied by a logical and economic analysis of the refusal to grant the license and the favoring of the company. He maintained that his doubts had been confirmed in a court order from February 29, 2012 which had closed the bid procedure and cancelling the international bid.
The District Court of Tirana held that Pollo had suffered moral damage because of Balla’s speech as the speech contained false information which was reflected in written and visual media causing him damage of his reputation and social dignity.
Balla appealed the decision to the Court of Appeals.
The main issue before the court was whether Balla’s speech and its media publication defamaed Pollo or whether it was protected by the right to freedom of expression and Balla’s duty to inform the general public.
Pollo argued that Balla made very serious and direct accusations against him, without verifying their validity nor considering the consequences it would have for his person and the public and political figure he represents.
Balla argued that his statements were in fulfilment of his duty as a political and elected representative, to provide information to the public. He submitted that his conduct was protected by the regulation of the Parliament of Albania, article 96, Articles 73/1, 22 and 23 of the Constitution of the Republic of Albania, and article 10 of the European Convention on Human Rights. He referred to the jurisprudence of the European Court of Human Rights and the Supreme Court of Albania where, in similar cases, priority was given to freedom of expression.
The Court held that, although the District Court had referred to the jurisprudence of the European Convention of Human Rights and the Supreme Court of Albania, it had not analyzed Balla’s arguments on freedom of expression or the rights to preserve Pollo’s reputation and social dignity. It also held that the lower court did not analyze Balla’s argument on his role as a politician and the purpose of his statements which – according to him – were related to the public interest and to Pollo’s fulfillment of his role and a politician and as a minister and so were not related to Pollo as an individual.
The Court examined the jurisprudence provided by Balla in which freedom of expression has been found by the courts to be important for a democratic society, especially when it is exercised by elected politicians, with the aim of drawing attention to voters’ concerns and protecting their interests.
In applying a limitations analysis, the Court balanced the right to freedom of expression and the right to a peaceful private life. Article 17 of the Constitution of the Republic of Albania provides that “Limitations of the rights and freedoms provided for in this Constitution can only be established by law… and that these limitations cannot violate the essence of freedoms and rights and in in no case can exceed the limitations provided for in the European Convention on Human Rights”. Against this backdrop, the Court analyzed the facts of the case, its subject and the consequences that may come as a result of the violation of one or the other of right or freedom.
A violation of Article 608 of the Civil Code requires: a) Existence of illegal action; b) Existence of the element of guilt; c) Existence of effective damage suffered by the person; d) and the cause-and-effect relationship between the action and the damage suffered. The Court held that Balla had not acted illegally in his exercise of the right of expression as a citizen of the Republic of Albania and even more so in fulfilling his political obligation to convey truth and information to the public, under a context of political communication with the public, presenting the concrete facts and the interpretations on them. [p.6] The Court held that the necessary elements for “responsibility for causing damage”, in Article 608 of the Civil Code, had not been met.
Accordingly, the Court held that Balla acted in accordance with his right to freedom of expression, and so his action was not illegal and that, in terms of Article 608, there was no effective damage caused by Balla to Pollo.
The Court also held that Pollo’s claim that “the defendant is presumed guilty” and the burden of proof belongs to him was “legal nonsense” and is probably an effect of the political assumption that “the opposition is guilty”. [p. 6] It accepted Balla’s argument that it there was no action with “guilt” on his part and that there cannot be when the political war is characterized by accusations and mutual counteraccusations: Balla had argued that this will continue regardless of the end of this civil process.
The Court reversed the decision and remanded it back to the District Court for a retrial.
Balla appealed the decision to remand the case back to the District Court to the Supreme Court, which rejected the appeal on the grounds that the Court of Appeals had not violated any legal procedure in remanding the matter.
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The Court’s decision confirms the important role the protection of freedom of expression plays in enabling parliamentarians to expose government wrongdoing and hold government officials to account.
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