GE.08-10710 (R) 280208 280208
Пункт 3 повестки дня
ПООЩРЕНИЕ И ЗАЩИТА ВСЕХ ПРАВ ЧЕЛОВЕКА, ГРАЖДАНСКИХ, ПОЛИТИЧЕСКИХ, ЭКОНОМИЧЕСКИХ, СОЦИАЛЬНЫХ И КУЛЬТУРНЫХ ПРАВ, ВКЛЮЧАЯ ПРАВО НА РАЗВИТИЕ
Доклад Специального докладчика по вопросу о праве на свободу мнений и их свободное выражение Амбейи Лигабо
Миссия в Азербайджан*
В настоящем докладе, подготовленном во исполнение резолюции 2005/38 Комиссии по правам человека и решения 1/102 Совета по правам человека, Специальный докладчик по вопросу о праве на свободу мнений и их свободное выражение представляет и анализирует информацию о поощрении и защите права на свободу мнений и их свободное выражение из источников Организации Объединенных Наций, а также информацию, полученную от высокопоставленных должностных лиц и национальных учреждений, неправительственных организаций и отдельных лиц во время его визита в Азербайджан в период с 24 по 27 апреля 2007 года.
Азербайджан всегда был местом соприкосновения различных культур и этнических групп. Распад Советского Союза и воспоследовавшее обретение независимости Азербайджаном придали новый импульс стране, которая борется за создание и упрочение демократических структур, становление гражданского общества и обеспечение устойчивого экономического роста.
В ходе визита Специальный докладчик имел встречи с президентом Азербайджана Ильхамом Алиевым, высокопоставленными государственными и правительственными чиновниками, а также представителями средств массовой информации, профсоюзов и гражданского общества. У него также состоялся обмен мнениями с членами дипломатического корпуса и старшими должностными лицами международных организаций.
В функционировании средств массовой информации наблюдаются различные проблемы. Согласно собранной Специальным докладчиком информации, текущее законодательство, призванное охранять граждан от диффамации, клеветы и оскорблений, не согласуется с усиливающейся тенденцией декриминализации соответствующих преступлений, а суды обычно особенно сурово наказывают журналистов и других работников средств массовой информации, которые подчас становятся жертвами репрессий, включая насилие и преследования, со стороны сотрудников правоохранительных органов.
Тем не менее Специальный докладчик удовлетворен обнадеживающими результатами его встреч с представителями правительства и государства, и он ожидает, что исполнительной властью в скором времени будут приняты надлежащие меры для оценки проводимой в стране политики, и особенно деятельности министерства внутренних дел. Что же касается министерства юстиции, то ему со своей стороны следовало бы проанализировать ряд судебных решений, послуживших широкому распространению среди журналистов чувства страха и потребности в самоцензуре, что ограничивает их свободу публичного самовыражения. Первым шагом в направлении исправления положения был бы быстрый пересмотр действующих законов о средствах массовой информации, с тем чтобы они полностью соответствовали международным стандартам.
Кроме того, представляется, что по различным причинам рынок коммуникаций серьезным образом отстает в развитии. Что касается регионального уровня, то присутствие крупных медиакомпаний в соседних странах не способствует новым финансовым вливаниям, которые могли бы повысить уровень представленности и возможностей средств массовой информации. Без надлежащего увеличения объема экономических ресурсов развитие профессиональных навыков представителей средств массовой информации, особенно их подготовки по вопросам прав человека и профессиональной этики, представляется маловероятным.
I. INTRODUCTION 1 - 7 5
II. BACKGROUND 8 - 12 6
FRAMEWORK 13 - 26 7
IV. SITUATION OF THE MEDIA IN AZERBAIJAN 27 - 59 12
A. General overview 27 - 39 12
B. Defamation 40 - 49 15
C. Violence against media professionals 50 - 59 19
V. CONCLUSIONS 60 - 69 21
VI. RECOMMENDATIONS 70 - 79 23
Annex List of participants in the meeting 26
1. The present document is a full report of the mission of the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression, Ambeyi Ligabo, to Azerbaijan, made from 24 to 27 April 2007 at the invitation of the Government. The document contains information and opinions from various sources, received by the Special Rapporteur prior to, during and following his visit to the country.
2. The contents of the present document refer to the situation prevailing in Azerbaijan at the time of the Special Rapporteur’s visit. The Special Rapporteur reiterates that his mandate does not concern exclusively the right to the promotion and protection of freedom of opinion and expression of the media, but also all forms of opinion and expression as exercised by citizens, groups and associations regarding civil, political, social, economic and cultural matters.
3. The Special Rapporteur would like to mention that, in the preparation of his mission and his report, he consulted material from United Nations sources, particularly the concluding observations of the Human Rights Committee (CCPR/CO/73/AZE) of November 2001 adopted upon the consideration of the initial report submitted by Azerbaijan; the concluding observations of the Committee on Economic, Social and Cultural Rights (E/C.12/1/Add.104) of December 2004; and those of the Committee against Torture (CAT/C/CR/30/1) of May 2003. The Special Rapporteur also took note of the core document for use by the treaty bodies (HRI/CORE/1/Add.117) of 27 February 2002, submitted by the Government of Azerbaijan.
4. During his visit, the Special Rapporteur met with the President of Azerbaijan, Ilham Aliyev, with senior State and Government officials, as well as with representatives of the media, trade unions, non-governmental organizations working in the field of human rights and members of civil society. He also had an exchange of views with members of the diplomatic corps and senior officials of international organizations.
5. During his visit, the Special Rapporteur attended a meeting entitled “Role of the media in the development of tolerance and mutual understanding”, organized by the Organization of the Islamic Conference, on 28 April, in Baku. In his address, the Special Rapporteur brought to the attention of the audience a number of issues he considered crucial for the development of harmonious, multicultural societies in which the right to free speech and editorial freedom are guaranteed.
6. The Office of the United Nations High Commissioner for Human Rights (OHCHR) maintains a presence in Azerbaijan in the framework of its “Regional Office for South Caucasus” project under the supervision of a senior human rights adviser based in Tbilisi. Its main activities include advisory support for Governments through training sessions and technical advice, in particular in the area of the administration of justice, freedom of expression and vulnerable groups, with an aim to strengthening national and local capacities to translate obligations under international human rights instruments into effective laws, regulations and policies. Furthermore, OHCHR focuses on increasing the awareness and understanding of recommendations and concluding observations of treaty bodies and special procedure mechanisms through training activities on the effective implementation of recommendations. It conducts human rights education programmes and disseminates OHCHR material in local and United Nations official languages. Another key priority is the engagement of United Nations country teams in the region to incorporate human rights-based approaches in their policy and programming work.
7. The Special Rapporteur wishes to thank the Government of Azerbaijan for its openness, which allowed him to carry out his mission in an effective way. The Special Rapporteur would also like to express his gratitude to all national and international figures, institutions, members of the media, trade unions, non-governmental organizations and individuals with whom he met and had a comprehensive exchange of opinions and information. Moreover, he wishes to thank the United Nations Office in Azerbaijan for its valuable support and assistance.
8. Following its official proclamation of national sovereignty in 1989, Azerbaijan became independent in October 1991 amidst internal tensions and mounting ethnic strife between Azerbaijanis and Armenians, which would develop into full-scale war over the Nagorny Karabakh region in 1992. Heydar Aliyev won the presidential elections in 1993; his son Ilham Aliyev became president after a landslide victory in an election held in October 2003. The country’s first Parliament, elected in 1995, replaced the temporary Melli-Majlis legislative rule.
9. Since independence, the main sources of instability have been the domestic political situation and the conflict over the Nagorny Karabakh region. While the political situation appears more stable nowadays, a solution of the Nagorny Karabakh conflict is still pending in spite of long-running and continuing efforts to find a lasting peace and a future for almost one million internally displaced Azerbaijanis. The country is suffering from a number of problems typical of democracies in transition, such as the low level of implementation of judicial reforms with a view to promote the rule of law and human rights. Rapid economic development, linked to oil resources, needs to be consolidated through reinvestment in economic, social and cultural fields in order to develop a fully thriving society.
10. It is worth noting that both the 2003 presidential elections and the 2005 parliamentary elections raised concerns at the international level regarding their fairness and impartiality. The ruling party of President Aliyev, the Yeni Azerbaijan Party, held the majority in the electoral commissions and was strongly sponsored through State media, while the time allotted to opposition parties was reportedly inferior. The parliamentary elections of November 2005 saw some improvements: a decree by President Aliyev in May 2005, calling for a democratic electoral process exempt from unlawful political interference, was welcomed by the international community as a step towards free and impartial elections. Nonetheless, mismanagement of voters’ cards, the arrests of several opposition members and bans on demonstrations before the electoral round showed that Azerbaijan did not meet the requirements in the organization of free and democratic elections.
11. Furthermore, in 2005, the atmosphere in the national media was particularly tense owing to the killing, in March, of one of the most prominent journalists in the country, Elmar Huseynov, who was shot dead close by his apartment in Baku. Mr. Huseynov was renowned for a number of inquiries published by his magazine, Monitor, which shut down after his murder. Despite international pressure to find a satisfactory outcome to the inquiry into Mr. Huseynov’s murder, circumstances surrounding that crime remain unclear.
12. The Special Rapporteur acknowledges the significant role played by the Representative on Freedom of the Media of the Organization for Security and Co-operation in Europe (OSCE), whose report of July 2005 on his visit to Azerbaijan contained an excellent analysis of the shortcomings in the exercise of media freedom, as well as a number of valuable recommendations, which need further attention from relevant national authorities.
13. The Constitution of Azerbaijan came into force on 27 November 1995. It created a presidential republic with separation of powers among the legislative, executive and judicial branches, providing a legal basis for the domestic implementation of international law in general and international human rights law in particular. International treaties were recognized as a constituent part of the internal legal system and given a higher hierarchical status in the event of conflict with a national law (art. 151). Article 12 (II) of the Constitution empowers domestic courts to apply international human rights treaties to which Azerbaijan is party, an engagement that needs to be corroborated and developed by a vast judicial practice, particularly by the jurisprudence of the Constitutional Court and the Supreme Court. The natural limitation to the application of international law is that it may not contravene the Constitution and laws adopted by referendum (art. 151).
14. The Constitution of Azerbaijan guarantees a broad range of political, civil, social, economic and cultural rights, as well as the rights of national minorities. It guarantees freedom of speech and of the press, and specifically bars media censorship, a matter that is also subject to article 7 of the Law on Mass Media. Of specific relevance are:
15. The Law on Mass Media, adopted on 7 December 1999 and signed into effect by the President on 8 February 2000, includes general rules for the preparation, production and dissemination of mass information within the country, and sets ground rules for the activities of the press, news agencies and television and radio enterprises. While article 1 declares that mass information is free and that the State is engaged in ensuring that citizens can enjoy the right to free information, article 5 defines the legislative safeguards of the information sphere, namely the Constitution and other instruments in addition to the Law on Mass Media and other appropriate acts. Article 7 prohibits censorship; article 8 defines mass media prerogatives, including a number of provisions regulating the right of journalists to receive information. Article 14 states that no prior agreement is required when requesting permission for printing or broadcasting. Lastly, article 59 forbids any interference by national bodies and institutions, private and public associations in the right to seek and distribute information.
16. The Law on Mass Media also includes provisions, such as article 10, which limit media freedom through the enumeration of a number of issues that cannot be properly investigated by media professionals. By doing so, media professionals could automatically be accused of violating the Law, especially when dealing with information involving broad concepts such as attempts on the integrity of the State or humiliating the honour and dignity of citizens, which can have a broad legal application. While the Law has been seen as an improvement, it is widely thought that it still does not meet accepted international standards and that it should be re examined and amended and its implementation reinforced. Likewise, article 11 prohibits the publication of information in the following cases: (a) information provided to a journalist on the condition of confidentiality; (b) information allowing the source of the information to be identified if the informant has stipulated that he or she should not be identified; (c) preliminary investigations and inquiry secrets, without the permission of the investigator, prosecutor or the person conducting the inquiry; (d) information about the identity of a minor accused of committing a crime, without his or her permission or without the permission of his or her legal representative. Moreover, under this article, a journalist may, by court ruling, be compelled to reveal his or her sources in order to: (a) protect human life; (b) prevent a serious crime; (c) protect a person accused of committing a serious crime. Lastly, it is interesting to note that the provisions of the Law on Mass Media are also applicable to Internet media companies, professionals and bloggers.
17. The Statute on Television and Radio Broadcasting was adopted in June 2002 with the aim of providing a framework for the activities of State, public service, municipal and private broadcasting. In article 9 of that law, general principles concerning the functioning of a public service broadcaster are laid down, a matter that will be dealt with in a subsequent law, as explained in another part of the present report. In October 2002, President Aliyev also signed a decree on the creation of a national television and radio council, a body responsible for, inter alia, the issuance of broadcasting licences to television and radio channels, the monitoring of their activity and the protection of the interests of the audience. Six of its nine members were to be appointed by the President of Azerbaijan.
18. On 24 August 2002, an attempt was made to amend, by Presidential Decree, the 1998 Law on State Secrets, in order to strengthen provisions requiring journalists to submit articles containing information on State secrets to a commission for review prior to publication, and requiring them to disclose their sources in such cases. Journalists protested and foreign embassies and international organizations also expressed concerns. In September 2002, the Government amended the law so that it no longer required journalists to reveal their sources.1
19. The Law on Public Television and Radio Broadcasting was adopted by the Parliament on 11 September 2004 and endorsed by the President on 29 September. The Government informed the Special Rapporteur that a number of international experts, including representatives of OSCE, the Council of Europe and local organizations, participated in its drafting. The Government further emphasized that according to findings of a monitoring study conducted by the British Broadcasting Council, public television was in line with the relevant international standards, particularly the principles of transparency and independence.
20. The Law on Public Television and Radio Broadcasting was widely criticized by various interlocutors of the Special Rapporteur with regard to the creation of an independent public service and the control the Government could in principle exercise over it. In particular, the law was criticized for failing to create a clear mechanism for the transformation of a State into public service broadcaster and hampering, in article 21, the independence of the Broadcasting Council, as its appointment would fall under the President’s prerogatives. Furthermore, the law did not specify who would actually govern the public broadcaster, given that the role of Director General of the management board appears severely diminished by the provisions contained in article 25.3. Article 29 also raised much controversy, as it states that the legal supervision of activities of the public broadcaster are to be exercised by the relevant State authority, which can be interpreted in various ways, including political interference.
21. Through the Law on the Acquisition of Information, adopted in 2005, a citizen can have access to or demand information from governmental bodies. Article 40 of the law defines a classification period for official and personal information, respectively of 5 and 75 years. Freedom of information is further regulated under article 3.6 of the Constitutional Law on Regulating the Exercise of Human Rights and Freedoms, which requires the intervention of Parliament with an appropriate legislative mechanism. In particular, article 284 of the Criminal Code envisages criminal sanctions for the disclosure of State secrets, while article 189.0.1 of the Code of Administrative Offences provides for sanctions on journalists for disclosing information, such as State secrets, information about private life and sensitive commercial information, if such disclosure is prohibited by law.
22. The Law on the Acquisition of Information, adopted in 1998, seems to widen the scope of the Law on Information, Information Technology and Protection of Information. The Law could be considered a first, raw attempt at legislating on the quick progress of an information society based on new technological tools.
23. The Office of the Human Rights Commissioner (ombudsperson) of Azerbaijan was established in 2001. According to article 2.1 of the Constitutional Law of 28 December 2001 establishing that Office, the Commissioner is to be elected by an 83 vote majority of the 125 member Parliament (Milli Mejlis) from three candidates nominated by the President of the Republic. The elected commissioner, who has a non renewable mandate of seven years, holds ample powers and prerogatives with the exception of investigations into the executive, the legislative and the judicial authorities especially in the submission of motions for pardon and amnesty, and in examining complaints concerning the administration of justice.
24. Elmira Suleimanova, who was elected first commissioner in July 2002, stated that her Office was focusing on legislative reforms of economic, social and cultural rights, and on compliance of national legislation with international standards in the framework of a national plan on human rights. The Office, within its ample mandate, also possesses a system of complaints, in accordance with the relevant provisions of the Constitutional Law, that deals with cases submitted by various categories of complainants, from asylum seekers to media professionals. Her Office, Ms. Suleimanova added, had been campaigning, in partnership with its main counterpart, the Ministry of Internal Affairs, against daily violence, including violent behaviour of law enforcement officials.
25. In November 2001, when examining the second report of Azerbaijan on its implementation of the International Covenant on Civil and Political Rights, the United Nations Human Rights Committee, in its concluding observations, expressed its concern at reported obstacles imposed on the registration and free operation of non governmental human rights organizations and political parties. The Committee urged the State party to take all necessary steps to allow national non governmental organizations to function without hindrance. With regard to political parties, the Committee urged the State party to take all necessary measures to ensure that registration was not used to silence political movements opposed to the Government and to limit the rights of association guaranteed by the Covenant.2
26. In May 2003, the Committee against Torture recommended, inter alia, that the State party ensure: the independence of the judiciary, in accordance with the basic principles on the independence of the judiciary; the prompt creation of a new bar association and take measures to guarantee an adequate number of qualified and independent lawyers are able to act in criminal cases; the full independence of the ombudsman; the full protection of non governmental human rights defenders and organizations.3
IV. Situation of the media in Azerbaijan
27. The creation of the Press Council on 15 March 2003, at the first congress of Azerbaijani journalists, represented a step forward in the reinforcement of media freedom in Azerbaijan. The Council was set up as a body to perform regulatory functions between the media and society, engaging in close cooperation with the authorities as a means to solve media related problems.
28. Nonetheless, the birth of the Council was marred by vivid polemics among the journalists themselves: a part of the category (representing six publications: Hurriyet, Novoe Vremya, Jumhurriyet, Veten, Uch Nogte and Ganun) boycotted the event, accusing the Government of being behind the election of the Council’s members; the Government strenuously denied any involvement, pointing out that the creation of the Press Council was a positive step forward for freedom of expression in Azerbaijan.4 The Council mainly serves to solve conflicts between the media and individuals and private companies, monitors publications and implements the provisions of the journalists’ code of ethics, elaborated and adopted by the Press Council itself, and are aimed at helping journalists to be more impartial and more aware of their important function in the society at large.
29. According to its chairman Aflatun Amasov, the Council receives on average 800 complaints a year, 100 of which are related to the impossibility of obtaining information from primary sources and to the refusal of admission to journalists to various events. In order to facilitate the exchange of information between independent media and State press departments, the Council has called for the establishment of unified regulations for all State run press services and for the improvement of the quality of the information provided, a suggestion endorsed by the Government. Despite its crucial role, the Council operates in very difficult economic conditions and the payment of its employees’ salaries is apparently ensured by a private foreign fund.
30. One initiative of the Press Council, in collaboration with the Ministry of Internal Affairs, was the creation of a “press vest” that media professionals are required to wear during demonstrations in order to make sure that they can be distinguished from ordinary demonstrators, especially if the event turns violent. This initiative came as a result of complaints of some 70 journalists to the Press Council of mistreatment by police after the elections in 2003. The Ministry of Internal Affairs has distributed the vests to the Press Council and to media workers, but it is not clear whether there is a record of the number of vests and to whom they correspond. However, the Special Rapporteur was provided evidence that media professionals were treated violently even when they wore the vest.
31. The Press Council came under criticism for its inactivity and for failing to create a bridge between the Government and the media, being thus unable to settle conflicts between authorities and journalists. Generally speaking, journalists found little support from the Press Council, which was considered not very active and too acquiescent with State institutions. Beyond the continuing phenomenon of violence against journalists, the Council was unable to intervene in the case of the eviction of an opposition newspaper from a Government building in late 2006. The Council Chairman stated that it was unconditionally against any abuse and violence against media professionals, whose independence was linked to economic factors. He also pointed out that, besides the Council, some other 50 journalist unions existed in the country.
32. According to information received from the Government after the mission, in 2007, the Press Council was provided with premises in a central part of the city, as well as the necessary equipment and means of functioning. The Government was also responsible for securing the salaries of the management and technical personnel of the Council.
33. The Press Council expressed great concern at the state of the financial situation of the media at large. The Council considered that large investments by private companies and State subsidies for the media from all political orientations were two complex yet indispensable developments to guarantee the survival of the media in the country, while initiatives to increase the supply of advertising and its exemption from taxes were two parallel steps that the Government could take in order to make the media environment more palatable to private investors.
34. In their meeting with the mission delegation, several journalists and editors expressed their dismay at the ongoing atmosphere of intimidation and violence towards the media and the high number of defamation trials against media representatives. With regard to the former, the Ministry of Internal Affairs was criticized for failing to solve the most serious cases of recent years and for lacking control over demonstrations, in which media professionals and protesters were beaten and abused by the police. Furthermore, it was stated that acts of violence could also be committed against journalists traditionally regarded as close to the Government whenever they interfere with major business interests. In relation to television broadcasting, media representatives criticized the strict application of rules for obtaining broadcasting licences and that the advertising market appeared to be in the hands of the Government. Lastly, journalists and editors remarked that, in spite of the country’s impressive economic growth, the information
market was depressed owing to the lack of financial investments and the consequent low revenues of professionals, another element that was seriously jeopardizing the independence of the media and the degree of pluralism. It was added that the press was at a great disadvantage; even the relatively low price of daily newspapers was a prohibitive expense for most Azerbaijanis, who increasingly rely on television and radio as their primary sources of news and information, while the biggest newspaper had a circulation of only 15,000 copies. It was noted that, in order to survive, newspapers have to find powerful sponsors and align themselves with political parties, thus sacrificing their editorial independence. Despite these constraints, about 600 newspapers are registered in Azerbaijan; nearly 100 are published at least once a month. Moreover, recent statistical data provided by the Government certify the registration of 2,678 mass media outlets throughout the country.
35. Other journalists stated that the country’s media panorama was rapidly evolving together with an adequate body of laws, although a change in the behaviour of law enforcement agencies, in particular at lower levels of authority, could take longer. The Director General of the public television channel ITV, which commenced broadcasting on 29 August 2005, explained that the very articulated political scene puts great pressure on independent journalism because it was objectively difficult to satisfy all requests made by some 53 political parties. In his opinion, ITV managed to maintain good relations with governmental parties and opposition forces, but complaints from both sides about alleged partiality, often amplified by the opposition media, were numerous. In such a context, ITV preferred to give priority to professional standards and the development of contacts with foreign broadcasting companies, which have provided technical and substantive assistance, such as free access to some of their archives.
36. Government representatives also underlined that they regarded the defence of the freedom of expression as a priority and that many journalists in conflict with the Government and law enforcement agencies were not politically independent because they worked in opposition parties, often with important roles. Allegations of violations of freedom of expression were used as a political tool in the framework of larger political strategies. In their opinion, the influence of political parties was clearly reflected by the financial resources invested in a number of newspapers, which could not survive on their income alone. The enlargement of the communications market, economically solid investors and adequate training for journalists could greatly help to improve media freedom. Other governmental sources added that President Aliyev had intervened in favour of the press by means of an executive order on paying off newspaper debts to publishing houses, issued on 8 February 2006. Pursuant to that order, debts of newspapers, including leading opposition newspapers, amounting to $450,000 were paid by the State budget.
37. The Special Rapporteur also received information concerning the initiative of some 20 Azerbaijan journalists, mainly working for Gundalik Azarbaycan and Realnyy Azerbaydzhan, who decided to seek political asylum in various West European countries at the end of May 2007, on the grounds of lack of security to carry out their professional activities and of the persecution by State authorities. The offices of the two newspapers were closed for alleged fire safety violations before the owner of the building decided, on 26 May 2007, to rescind the lease with immediate effect. The journalists also protested about the arrest of Gundalik Azarbaycan founder Eynulla Fatullayev and the attack against the newspaper editor, Uzeyir Jafarov (see paragraph 43 below).
38. At the time of writing, in Azerbaijan, there were 7 national, 12 regional and 11 cable television channels. Two foreign television channels and five radio stations also operate in the country. In spite of the existence of adequate legislative provisions, no new licences were issued to private television channels until 2005, and the privatization of the State broadcasting company AzTV Channel 2 (now known as ITV) left AzTV Channel 1 under governmental control. With regard to the press, around 100 outlets had regular publications. According to information received from the Government, they had an overall circulation of some 40 million copies per year. Regarding the new media, Azerbaijan currently counts on some 900,000 Internet users and has 5,409 registered web domains.
39. The mission delegation also met a group of female journalists and academics, who felt that, despite the increasing number of women working in the information market, their role was severely underestimated and relegated to marginal posts, most often in opposition papers. More integration and a general upgrading of women’s roles, also in the academic environment, were expected.
40. One of the main factors that restricts the freedom of the press and which shows the extent of hostility towards the media, especially towards those linked to opposition parties, is the use of criminal libel suits by government officials. Articles on cases of alleged corruption and other material critical of official misconduct often fall under articles 147 (“Slander”) and 148 (“Insult”) of the Criminal Code.5 Citizens convicted following the application of these articles can be sentenced to both the payment of heavy fines and prison terms. Following consideration, in November 2001, of the second report of Azerbaijan on its implementation of the International Covenant on Civil and Political Rights, the United Nations Human Rights Committee expressed its concern at the extensive limitations on the right to freedom of expression of the media. While noting the explanations given by the delegation with regard to that issue, the Committee remained concerned at reports of harassment and criminal libel suits used to silence journalists critical of the Government or public officials, as well as the closure of print media outlets and the imposition of heavy fines, aimed at undermining freedom of expression.6
41. Many media professionals expressed their concern at the current legislation on defamation and the extensive use of jail sentences by the judiciary, which had a chilling effect on media freedom at large. When meeting with the mission delegation, a number of journalists stated that they had been sentenced to long prison terms or to paying heavy fines at the end of defamation trials.
42. In the wake of the killing, in March 2005, of journalist Elmar Huseynov, who had often been on trial on defamation charges, President Aliyev called on government officials to not file lawsuits against the media, establishing a de facto moratorium on libel cases. Unfortunately, the moratorium was never made law and President Aliyev has apparently been the only government official to respect the moratorium.7 In 2006, several publications were still the target of criminal defamation suits by government officials and other prominent figures. It has been reported that, in 2006, the newspaper Azadliq was fined approximately $300,000 on charges of libel and of having insulted the reputation and dignity of government officials a dozen times, while a number of journalists served prison sentences. Shahin Agabayli, editor in chief of Milli Yol, was imprisoned and subsequently pardoned by President Aliyev; Serdar Alibeyli, whom the Special Rapporteur met, and Faramaz Novruzoglu, editor in chief and reporter of the weekly Nota Bene, were respectively sentenced to 18 months and two years on charges of defamation of the Minister for Internal Affairs. Samir Sadagatoglu, editor of the weekly Sanat, was arrested for publishing an article on Islam in November 2006 and detained for three months.
43. More recent cases of journalists convicted on charges of defamation regard Eynulla Fatullayev, founder and editor of Gundalik Azarbaycan and Realnyy Azerbaydzhan, and Rovshan Kebirli and Yashan Agazadeh of the newspaper Muhalifet. On 20 April 2007, Fatullayev was sentenced to two and half years in prison for an article on a website, in which he criticized Azerbaijani authorities and the army in connection with the massacre of Khojaly in
February 1992, alleging that they had failed to protect Khojaly residents from the attack of Armenian forces. Fatullayev denied posting the article and stated that his trial was linked to another article he had published in 2005 in Monitor, the newspaper of the late Elmar Huseynov. For the same incident, Fatullayev was also fined approximately $12,000, in a civil suit brought against him by the Azerbaijan Centre for Refugees and Displaced Persons. Furthermore, the premises of Gundalik Azarbaycan and Realnyy Azerbaydzhan were closed down by the authorities on 22 May. It is worth noting that Mr. Fatullayev’s deputy, Uzeir Jafarov, was assaulted and seriously injured by unknown individuals a few hours after he had testified in favour of Mr. Fatullayev. It should be recalled that, in autumn 2006, Mr. Fatullayev’s father was kidnapped and released after his son temporarily stopped his publications.
44. On 16 May 2007, Rovshan Kebirli and Yashar Agazadeh were sentenced to two and half years in prison for defaming a relative of President Aliyev who, in their opinion, had exploited family connections for his business activities. The Special Rapporteur asked the Azerbaijani authorities to reconsider these two cases and to release Fatullayev, Kebirli and Agazadeh immediately.8
45. On 4 May 2006, Sanat reporter Rafik Taghi and editor Samir Sadatoglu were sentenced, under article 283.1 of the Criminal Code, to three and four years of prison respectively on charges by the office of the General Prosecutor for “inciting racial, national and religious hatred”. In 2006, Sanat published an article containing a comparison of religious values and their modernity. The proceedings of their trial were biased by the presence in the Court of numerous religious activists who threatened the defendants and their colleagues covering the event. Nonetheless, on 6 July 2007, the Appellate Court of Baku decided to uphold the original verdict.
46. The Special Rapporteur regrets to note that, at the time of writing, a number of media professionals were being detained, mainly following defamation trials. The case of Sakit Zahidov case is particularly indicative of the prevailing atmosphere in the political debate. Mr. Zahidov, also known as Mirza Sakit, a journalist and satirist for Azadliq, was arrested in June 2006, on the charge of “possession of illegal narcotics with intent to distribute”, and eventually sentenced, on 4 October 2006 to three years’ imprisonment by a Baku court on the charge of “possession of drugs for the purpose of personal consumption”. Reportedly, the journalist’s trial fell short of recognized international standards and was marred by several irregularities. Nonetheless, Mr. Zahidov had his appeal rejected in December 2006 and was
transferred to the prison facility at Qobustan, notorious for its harsh detention conditions. On 23 April 2007, Mr. Zahidov was transferred to the penitentiary system central hospital in Baku because of serious health problems.
47. High ranking officials of the Government denied all allegations of persecution of the media. They affirmed that the systematic use of defamation and slander was perpetrated by a mere 10 to 15 per cent of journalists, who were apparently unable to perceive the difference between criticism and insults. The head of the presidential executive staff, Ramiz Mehdiyev, stated that he believed that the articles of the Criminal Code on liability for insulting someone’s honour and dignity and for libel should remain in force for the time being. He also stated that media issues were too often politicized, while the real point was to understand to what extent media professionals intended respecting national laws. The same concepts were reiterated by Ali Hasanov, head of the Public and Political Department of the presidential executive staff, who added that the State protected the independence of the media; the reaction of international organizations to recent events was not appropriate, because freedom of expression was not in question, but the respect all citizens must pay to national laws. Recalling that censorship had been abolished by article 50 of the Constitution, Mr. Hasanov recalled that President Aliyev had often intervened in favour of media professionals, regardless of their political opinions, through the cancellation of fines and pardons.
48. When meeting with the Special Rapporteur, representatives of the office of the Prosecutor General stated that, taking into account the recent history of Azerbaijan, defamation of national symbols and similar offences were very sensitive issues and that the reform of the related articles of the Criminal Code was a complex matter, at the centre of discussions with international organizations. The recruitment of new judges, adequately trained with more progressive systems, could inject new blood into the administration of justice.
49. According to information sent by the Government after the mission, the issue of defamation and, in particular, the possibility of confining it to civil rather than criminal law was the subject of extensive discussions within the Government and society at large. In particular, the Government stated that the adoption of such measures was envisaged for the future and that it was already engaged in cooperation with OSCE, the Council of Europe and local non governmental organizations to work on improving public media relations and strengthen media professional standards. The Special Rapporteur noted this information with satisfaction, emphasizing that the abolishment of criminal defamation procedures against media professionals would be a major step in the direction of securing a free and independent press.
50. The Special Rapporteur received consistent and detailed information from various sources concerning acts of violence, either perpetrated by law enforcement officials or by unknown persons, against journalists and other media workers. This worrying sequence of aggressions against media professionals and the lack of efficient and impartial investigations into them had a chilling effect on the freedom of expression in the country. The ensuing climate of impunity was reinforced by the fact that, in most cases, the identity of the assailants remained unknown, and as a result no one was ultimately brought to justice for these crimes. Also, cases of beating and harassment of journalists by law enforcement officials were not investigated in a comprehensive manner.
51. Violence against journalists seemed to rise during politically sensitive periods, such as election campaigns. This was the case in the period prior to the November 2005 parliamentary elections, though the policy of wearing press jackets was already in place. According to information provided by the Press Council, at least 40 journalists were subjected to violence while fulfilling their professional duties in the most recent elections.
52. Representatives of the Ministry of Internal Affairs said that the main priority of its action was the fight against new forms of entrenched criminal activities, such as drug trafficking. It was acknowledged that, occasionally, police officers resorted to the use of excessive force in dealing with public protests, however the Ministry was doing its best to modernize law enforcement attitudes, which were a legacy from the times of the Soviet Union. Significant progress had been made in establishing a real collaboration with all media and the phenomenon of mistreatment of journalists was closely monitored.
53. Following his meeting with the Minister for Internal Affairs, the Special Rapporteur received a 7-page unsigned and undated document containing names of alleged victims and perpetrators and the precise circumstances of numerous incidents mainly related to the elections of November 2005 from the Ministry. It also contained the results of a review, carried out by the Internal Investigations Department, relating to a number of reports of alleged human rights violations by the police. A total of 68 investigations, mainly linked to cases of alleged violations during the electoral period, were conducted in 2005 by the Department. Disciplinary proceedings were consequently brought against seven police officers: one was dismissed from service in the Ministry of Internal Affairs; one was demoted through the presentation of a “notification on incomplete qualification for the official post”; two policemen received a severe reprimand; and the remaining three a reprimand.
54. On 9 May 2007, subsequent to a specific oral request made by government representatives during his visit, the Special Rapporteur sent a letter to the Permanent Mission of Azerbaijan at the United Nations Office in Geneva, in which he mentioned the names of 12 journalists whose human rights appeared to have been severely violated. The Special Rapporteur asked for a prompt re-examination of their judicial cases and the opportunity of financial compensation for those who had suffered permanent physical injury.
55. In this context, the Special Rapporteur wishes to raise again some of the cases he brought to the attention of the authorities of Azerbaijan and hopes that a positive conclusion can be found as soon as possible. In March 2005, Elmar Hüseynov, editor-in-chief of the weekly Monitor, was murdered by unidentified individuals as he was returning home to his apartment building in Baku. The trial of the main suspect in Mr. Hüseynov’s murder could shed light on the circumstances and the motives of this heinous crime, which are still unclear. However, in order to ensure the respect of the right to a fair trial and the search for truth, relevant authorities might consider opening a new investigation.
56. On 6 March 2006, Fikret Hüseynli, correspondent for Azadliq, whom the Special Rapporteur met personally, was abducted, beaten and left unconscious in the outskirts of Baku by unidentified men. Mr. Hüseynli had received hostile phone calls concerning articles he wrote about allegations of corruption of high-ranking officials and other prominent figures in the country. He survived the attack, but his physical condition is precarious and investigations into his case have brought no results.
57. On 18 May 2006, Baxaddin Xaziyev, deputy chairman of the Popular Front of Azerbaijan and editor-in-chief of Bizim Yol, whom the Special Rapporteur met personally, was abducted and beaten by unidentified men in Baku. Mr. Xaziyev was seriously injured and suffered permanent injury to a leg, which was badly broken when his aggressors drove over it. After leaving the hospital, he went into hiding because of the risk of further attacks. His abduction might have been linked to a series of articles about corruption in the oil and fishing industries, in which several high-ranking officials were named. Despite the political and professional motives that could have been considered, the investigations focused solely on his private life and were inconclusive.
58. On 24 November 2006, special forces evicted Azadliq, the main opposition newspaper, from the premises it had occupied, free of charge, since 1992 on the basis of an agreement with the then-mayor of Baku. The eviction was made possible by a court decision which found that agreement illegal. The same day, the independent television channel ANS was closed down by the National Television and Radio Council on the grounds that the legislation relevant to the issuance of broadcasting licences had been violated. ANS recommenced its programmes three weeks later until it was granted a new licence on 27 April 2007.
59. On 24 December 2006, Ali Orucov, press secretary of the party Azerbaijan National Independence and contributor to the newspaper Rating, was assaulted. The next day, a journalist, Nijat Huseynov, working for Azadliq, was seriously injured by four assailants and hospitalized for three weeks. Reportedly, police questioned Mr. Huseynov about the attack and made a sketch of two of the assailants, but to no avail.
60. Independent countries emerging from the dissolution of the Soviet Union have been experiencing a period of transition marked by political instability and lack of consistent social growth. They have inherited a legacy of a powerful and centralized State that still influences the behaviour of some State institutions, particularly law enforcement and regulatory agencies, as well as the way relations between the State and the media are structured.
61. The unsettled conflict with Armenian forces over the Nagorny Karabakh region in the 1990s is still a burden for Azerbaijan and its people. The existence of almost a million internally displaced persons and significant material losses, including a large part of territory, are an open wound that may, at times, be used for political ends. Unfortunately, despite some recent efforts, conditions to achieve a peaceful solution of this conflict are still far from being achieved.
62. Owing to impressive economic growth, the present situation leaves the door open to rapid modernization, which should be followed by general social growth. Nonetheless, democracy cannot be consolidated without the free circulation of ideas and opinions ensured by an independent press and media. The public interest is best served by a variety of independent news media, both printed and broadcast, which must be allowed to emerge and operate freely. There is an undeniable need to promote the expression of a number of voices and opinions, still unheard, within Azerbaijani society. In addition, there is a need to encourage dialogue among the various business and social categories and interaction with political actors. Moreover, dialogue among media professionals and other intellectual categories with business stakeholders could pave the way to a greater understanding of their respective positions and expectations, thus ultimately contributing to the end of the current stalemate.
63. Freedom of expression begins at home, and the flow of news across national frontiers cannot be free if the flow of news within those frontiers is not free. Nor can there be any “national sovereignty” over news and opinion. Printed and broadcast media should have unrestricted access to foreign news and information services, and the public should enjoy similar freedom, without interference, to receive foreign publications and broadcasts. National frontiers must be open to foreign journalists, who should be allowed to travel freely throughout the country and have access to both official and unofficial news sources.
64. Journalists, editors and other media workers are often under varying degrees of pressure from those in key institutions, business lobbies and informal associations often acting in close cooperation. In this context, investigative journalism is facing obstacles, especially when it addresses sensitive topics. Correspondents in small towns are even more vulnerable; public authorities are often hostile and the civil society is still unable to react to abuses and provide protection. In order to avoid trouble and violent reactions, numerous media professionals may be forced to work on a sort of “stand-by” mode, limiting their activity to the coverage of statements, communiqués and press conferences. Lack of independence of media professionals thus remains a serious obstacle to freedom of expression.
65. The media environment also suffers from poor financial investments; while national television channels and radios have their own audience, newspapers and other printed press are able to sell only a few thousand copies. Furthermore, the presence of large foreign media groups, in particular from Turkey and the Russian Federation, does not encourage the growth of national media outlets. On the one hand, the dominance of powerful media corporations, often linked to political and business elites, can restrain editorial independence, narrow diversity of opinion and entrench self-censorship. On the other, media enterprises need considerable financial investments to operate not only freely but also effectively; the real challenge consists in maintaining a distance between truly autonomous media professionals and media corporations, which, by definition, are bound to make financial benefits. In this panorama, the survival of the country’s rich and varied cultural heritage is at stake because of the prevalence of commercial programmes that prioritize economic return over quality information and other educational and socially oriented initiatives.
66. According to information gathered by the Special Rapporteur, some sectors of the Ministry of Internal Affairs and of the judiciary appear to exert considerable pressure on the media. In addition to cases of physical violence, the use of defamation trials severely penalized press and media freedom through the imposition of prison terms and heavy fines. Publishers, editors and journalists reported that they practised self-censorship owing to various pressures, including the threat of expensive libel suits. Accusations of defamation included denigration of national symbols, thus systematically reducing room for debate about foreign policy.
67. Bearing in mind the vital role played by the media in creating broad awareness of political, economic and social issues, the fact that many journalists go on trial for defamation charges remains totally unacceptable. Political and public figures continue to sue journalists, although they should, because of their institutional roles, be ready to accept criticism and public scrutiny to a greater extent than the ordinary citizen should.
68. Other categories, including trade unionists, writers, students and in general human rights defenders are also under severe stress; in an oppressing atmosphere of conformism, they are often depicted as traitors and proxies of hostile forces. For the purpose of guaranteeing pluralism, relevant authorities should make sure that both State and private media provide enough room for constructive debate and dialogue on sensitive issues, especially to those groups that rarely have the opportunity to express their opinions to a wide audience.
69. Training for media professionals could help improve the quality of information. Efforts should be made to increase human rights awareness and a culture of independence, openness and impartiality through an ethical approach to journalism. Such a step will not be possible without the financial support of the State, international organizations and private enterprises.
70. The Special Rapporteur invites the United Nations, OSCE and other regional bodies to strengthen their efforts together with the concerned countries in order to find a fair and durable solution to the conflict in Nagorny Karabakh. The persistence of this conflict has a negative influence, at the national and regional levels, on the exercise and full enjoyment of freedom of expression, and in particular on freedom of movement.
71. The Special Rapporteur encourages the Government of Azerbaijan and other relevant institutions to consider repealing criminal legislation on defamation and similar offences, especially articles 147, 148 and 323 of the Criminal Code, with the purpose of including it, after an adequate process of revision, in civil law. The existence of an increasing body of law, at the regional and national levels, holding that criminal defamation laws per se are contrary to the right to freedom of expression, and the example provided by countries with a similar historical background, may help the relevant Azerbaijani institutions take such a decision. Civil defamation laws have proven adequate to protect reputations. These laws should include the principle that public figures should tolerate a greater degree of criticism than ordinary citizens, and that the analysis of historical events and national affairs cannot be considered an offence. New legislation will also ensure that fines are proportionate to the offence and do not suffocate media activity.
72. State authorities should be encouraged to follow President Aliyev’s example and publicly declare their willingness to renounce legal means to respond to libel and defamation. Alternatively, President Aliyev, using his prerogatives and powers, and with the assistance of the Human Rights Commissioner, could decide to enforce an amnesty on sentences for libel and defamation, and a moratorium to be quickly converted into law.
73. The Special Rapporteur urges the Government of Azerbaijan and relevant national bodies to regard action against impunity of crimes targeting media professionals and opinion makers as one of the main priorities of democratic evolution. In particular, the judiciary should ensure impartial, comprehensive investigations and judgements when law enforcement agencies appear to be involved in crimes against the exercise of freedom of expression and good governance.
74. The Government should take immediate remedial measures, including financial compensation as appropriate, for all media professionals and opinion makers who are victims of violence, in particular whenever law enforcement officials appear to have been involved in these criminal acts.
75. The Special Rapporteur invites the Government to consider appropriate legislation for the establishment of an independent national human rights commission, which would supplement the activities of the Office of the Human Rights Commissioner (ombudsperson), mainly in the effective implementation of the national plan for the promotion and protection of human rights, adopted in December 2006.
76. The Special Rapporteur encourages all stakeholders involved in the exercise of freedom of opinion and expression to find fresh impetus in their work and to show genuine openness and commitment to dialogue with their counterparts. Relevant governmental authorities should speedily carry out human rights training programmes for the benefit of their officials and cadres, in order to bring their performance into line with the development of a true democratic State.
77. The Special Rapporteur calls for a general and broad revision of the laws on television and radio broadcasting. The speedy establishment of an appropriate legal and institutional framework to consider and issue licences to independent broadcasters should be seen as a priority. In this connection, the mandate of the National Television and Radio Council should be made more effective, and the council should be able to work independently. Likewise, the Press Council should be provided with additional human and material resources in order to increase its autonomy.
78. The Parliament needs to legislate on specific and urgent measures for the promotion of the press, whose role, in a period of great technological revolution, remains fundamental for educational purposes, and especially for the development in its readership of a critical approach and analysis of information.
79. Through the support of international organizations, the establishment of a school of journalism could create a favourable environment for the development of journalism ethics. Professional training and financial investments, especially an increase in salaries, could help improve the moral stance of the press and the media industry.
Ilham Aliyev, President of the Republic
Ramil Usubov, Minister for Internal Affairs
Fikrat Mammadov, Minister for Justice
Iltimas A. Mammadov, Deputy Minister for Communication and Information Technologies
Khalaf Khalafov, Deputy Minister for Foreign Affairs
Tourab Gurbanov, Chief Specialist, Analytical Information Section, Foreign Relations Department, Office of the President of the Republic
Ali Hasanov, Head of the Socio-political Department, Office of the President of the Republic
Arif B. Mammadov, Attaché, Department for Human Rights, Democratization and Humanitarian Problems
Ramiz Rzayev, Chairperson, Supreme Court
Bahar Muradova, Parliamentary Spokesperson
Prof. Elimira Suleymanova, Ombudsperson
Rustam F. Mammadov, Head of the Department of International Public Law, Baku State University
Efendiyev Vusat Emir Ogli, Vice-Rector, Doctor of Geographical Sciences, Baku State University
Elchin Shikhlinsky, Chairman, Azerbaijan Journalists Union
Arif Aliyev, Chairman, “Yeni Nesil” Azerbaijan Journalists Union
Yadigar Mammadli, Chairman, League of Democratic Journalists Office
Mehman Aliyev, Director General, TURAN news agency
Zardusht Alizade, Editor-in-chief, ^ daily
Gazanfar Bayramov, Editor-in-chief, Express daily
Ganimat Zahidoglu, Azadlig
Bahaddin Haziyev, Editor-in-chief, Bizim Yol
Shahin Agabeyli, Editor-in-chief, Milli Yol
Aydin Guliyev, Editor-in-chief, Baki Xeber
Fikret Faramazoglu, Editor-in-chief, 24 saat
Ilham Tumas, Editor-in-chief, Nota Bene
Sadar Alibeili, Editor-in-chief, Nota Bene
Rauf Arifoglu, Editor-in-chief, Yeni Musavat
Fikret Huseynli, Azadliq
Shahbaz Huduoglu, Editor-in-chief, Ganun
Rashid Hajili, Media Rights Institute
Ibrahim Mammadli, Coordinator of the standing commission of the Press Council for addressing problems between media and State bodies; Head of the Monitoring Group; President of Zardabi Press Center
Eldar Zeynalov, Director, Human Rights Centre of Azerbaijan, Azerbaijan National Committee of the International Helsinki Federation
Zaliha Tahirova, Board member, Human Rights Centre of Azerbaijan, Azerbaijan National Committee of the International Helsinki Federation
Intigam Aliyev, President, Legal Education Society
Saida Gojamanly, Director, Bureau of Human Rights and the Respect of Law
Rustam F. Mammadov, President, Caspian - Partnership for the Future
Leyla Yunus, Director, Institute of Peace and Democracy
Prof. Sajida Abdulvagabova, Director, Woman’s Problems Research Union
Novella Jafarova-Appelbaum, Chairperson, Association for the Protection of Women’s Rights after D. Aliyeva
Sattar S. Mehbaliyev, Chairperson, Azerbaijan Trade Unions Confederation
Aflatun Amashov, Chairperson, Azerbaijan Press Council
Azer J. Tagiev, Chairperson of the Presidium of Bar Associations of Azerbaijan, Member of Central Election Commission
Bernard Amaudric du Chaffaut, Ambassador Extraordinary and Plenipotentiary, France
Jon Ramberg, Ambassador Extraordinary and Plenipotentiary, Norway
Laurence Bristow, Ambassador Extraordinary and Plenipotentiary, United Kingdom of Great Britain and Northern Ireland
Hans-Josef Over, Deputy Head of Mission, Germany
Jason Hyland, Deputy Head of Mission, United States of America
Sarat Das, Chief of Mission, International Organization for Migration
Kamran Garakhanov, Head of office, World Health Organization
Jose Luis Herrero Ansola, Head of office, Organization for Security and Co operation in Europe
Yashar Hamzayev, National Correspondent, International Labour Organization
Gregory T. Jedrzejczak, Country Manager, World Bank
Bruno Pouezat, United Nations Resident Coordinator, United Nations Development Programme Resident Representative
William Tall, Representative, United Nations High Commissioner for Refugees
Hanaa Singer, Representative, United Nations Children’s Fund
David Eizenberg, Deputy Resident Representative, United Nations Development Programme
Farid Babayev, Assistant Representative, United Nations Fund for Population Activities
Envera Selimovic, United Nations Department of Public Information
Teymur Malik-Aslanov, National Programme Officer, Office of the United Nations High Commissioner for Human Rights
Fuad Guseynov, Logistics Officer, World Food Programme
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* Резюме доклада распространяется на всех официальных языках. Доклад, содержащийся в приложении к резюме, распространяется только на языке представления.
2Concluding observations of the Human Rights Committee (CCPR/CO/73/AZE), 12 November 2001, para. 23.
3Concluding observations of the Committee against Torture (CAT/C/CR/30/1), 14 May 2003, para. 7.
5The new Criminal Code of Azerbaijan, adopted by the Parliament on 30 September 1999, came into force on 1 September 2000. Article 1 of the Criminal Code also provides that “the Code is based on the Constitution of the Azerbaijan Republic and generally accepted principles and norms of international law”.
6Concluding observations of the Human Rights Committee (CCPR/CO/73/AZE), November 2001, para. 22.
7Council of Europe Parliamentary Assembly, resolution 1545 (2007), para. 8.1.1.
8See also International Federation of Journalists, www.ifj.org/default.asp?index=4969&
Language=EN, 25 May 2007, and Committee for the Protection of Journalists, www.cpj.org/news/2007/europe/azer16may07na.html, 16 May 2007.