Post-Soviet Media Law & Policy Newsletter

Issue 47 Benjamin N. Cardozo School of Law June 15, 1998

State Duma Decree No 2294
“On the Activity of Certain Russian Television Companies”
    The strengthening of public morality and respect for the historically conditioned norms of culture and the inalienable right of citizens to freedom of conscience and freedom of religion are the immutable cornerstones of Russian society as enshrined in the Russian Federation constitution and in Russian Federation legislation.
    However, certain Russian television companies, above all NTV [Independent Television], taking advantage of the imperfection of legislation, are through their activity inflicting damage on public morality, showing output of a frankly cynical, indecent and offensive character and effectively propagandizing pornography and the cult of violence and cruelty, which are capable of inducing people to commit crimes.
    In accordance with Article 6, Point 3 of the Federal Law “On freedom of conscience and religious associations,” the inadmissibility of deliberately offending citizens’ feelings in connection with their attitude to religion is an essential condition for citizens to exercise their constitutional right to freedom of conscience and freedom of religion. Despite this, and despite public protests, on 9th November 1997 the NTV television company showed the director Martin Scorsese’s film “The Last Temptation of Christ,” which, according to the statement of His Holiness the Patriarch of Moscow and All Russia Aleksiy II, offended the religious feelings of Russia’ s millions of Orthodox Christians.
    With the aim of protecting public morality and citizens’ right to freedom of conscience and freedom of religion the Russian Federation Federal Assembly State Duma decrees:
    1. The State Duma Committee for Legislation and Judicial and Legal Reform and the State Duma Committee for the Affairs of Public Associations and Religious Organizations are hereby instructed to organize the preparation of draft laws providing for stricter measures of liability for propagandizing pornography or the cult of violence and cruelty, and also for deliberately offending—publicly or in the mass media—citizens’ feelings in connection with their attitude to religion.
    2. The State Duma Committee for Information Policy and Communications is hereby instructed to organize the preparation of a draft law on amendments and additions to the Russian Federation Law “On the Mass Media,” stipulating in this draft law the following additional grounds for annulling television broadcasting licences:
    — the showing of output of a cynical, indecent or offensive character;
    — the use in disseminated output of nonstandard vocabulary and offensive expressions;
    — the showing of output containing the detailed depiction of scenes of cruelty and violence and the committing of crimes;
    — the dissemination of output in which outrage against objects of religious veneration is committed, thereby offending citizens’ feelings in connection with their attitude to religion.
    3. It is proposed that the Russian Federation government:
    a) elaborate a system of standards, which should be based on historically conditioned traditional norms of morality, culture and language, and to which the output of Russian television companies, irrespective of their form of ownership, should correspond.
    b) elaborate statutory legal acts in which compliance with the aforementioned standards is stipulated as one of the conditions for issuing a TV broadcasting licence;
    c) monitor more stringently the compliance with Russian Federation legislation by Russian TV companies, irrespective of their form of ownership;
    d) instruct the Russian Federal Service for Television and Radio Broadcasting:
    — to reword the licences of all Russian television companies irrespective of their form of ownership in accordance with the aforementioned statutory legal acts;
    — to issue a written warning to the NTV television company for showing on 9th November 1997 the director Martin Scorsese’s film “The Last Temptation of Christ” in violation of Article 3 of the Federal Law “On Freedom of Conscience and Religious Associations,” which forbids interference with a citizen’s exercise of his right to freedom of conscience and freedom of religion involving deliberate offence to citizens’ feelings in connection with their attitude to religion.
    4. The attention of the leadership of Russia’s television companies, irrespective of their form of ownership, is drawn to the inadmissibility of abusing the freedom of information through the dissemination of output propagandizing pornography and the cult of violence and cruelty or offending citizens’ feelings in connection with their attitude to religion.
    5. This decree is to be sent for publication in ‘Rossiyskaya Gazeta.’
    6. This decree comes into force from the day of its adoption.
    [Signed] G.N. Seleznev, chairman of the Russian Federation Federal Assembly State Duma
    [Dated] Moscow, 18th March 1998.

The Last Temptation of NTV,” ‘Rossiyskaya Gazeta,’ Moscow, March 27, 1998

Regulations
“On Granting Licenses for Television and
Radio Broadcasting and the Printing Business”

Approved by Resolution N: 84
of the Cabinet of Ministers
of the Republic of Azerbaijan,
dated April 16, 1998

1. General provisions

    1.1 These Regulations have been elaborated in conformity with the Laws of the Republic of Azerbaijan “On Mass Media”, “On Entrepreneurial Activities”, pursuant to “The Procedures for Granting Licenses for Certain Types of Entrepreneurial Activities” approved by decree of the President of the Republic of Azerbaijan dated January 27, 1997 (N:543) and by presidential decree dated October 4, 1997 (N:637) “On the Approval of the List of Activities Requiring Special Permits (Licenses).” These Regulations determine the procedures for granting special permits (hereinafter “licenses”) in order to be engaged in radio and television broadcasting and the printing business.
    1.2 Pursuant to these Regulations, the licenses given by the Ministry of Press and Information to legal entities, as well as to physical persons who are engaged in entrepreneurial activities without forming a legal entity (hereinafter “applicants”), irrespective of their form of property and legal status, are legal documents which allow engagement in the following types of activities:
    1.2.1 radio and television broadcasting;
    1.2.2 printing business.
    Separate licenses are given for each type of activity shown in this clause.
    If the applicants are engaged in more than one type of activity, they must obtain licenses for each type of activity.
    Printing activities in these Regulations mean composition, development of printing forms, the process of printing copies of all kinds of publications.
    All the enumerated processes, considered as a complex or taken separately, may be referred to as the process of printing.
    These regulations apply to all enterprises, except those engaged only in copying of documents.
    1.2.3 The license does not give the right to print bank notes, obligations, shares, tickets, stamps, checks and other securities intended for the settlement of accounts without the permission of the respective competent entities.
    1.3 The applicants may engage in the type of entrepreneurial activities in form and to the terms shown in the license only after obtaining of the license.
    1.4 Foreign legal and physical persons, their branches and representations engaged in the activities referred to in this clause in their home countries must obtain licenses pursuant to these Regulations unless there are interstate agreements with the Republic of Azerbaijan which recognize their home country licenses.
    1.5 Only the licensee may use the licenses (copies of licenses); licenses (copies of licenses) are not transferable. The legal effect of the license does not apply to legal persons founded by the licensee or to persons who are engaged in joint activities with the licensee, including persons who are engaged in activities with the licensee on partnership contracts.
    The temporary transfer of the license to a person acting on behalf of the licensee as an employee or personal services contractor is not regarded as the transfer of the license to another person.

2. Procedures for granting licenses

    2.1 To obtain a license the applicant shall submit the following documents to the Ministry of Press and Information:
    2.1.1 License application.
    The application must contain the following data:
    For legal persons: the name of the legal person, its legal status, legal address, name of bank and account number, type of activity (if the type of activity shown in the application is conducted in different locations, the address(es) of these locations must be shown in the application);
    2.1.2 Copies of founding documents;
    2.1.3 A copy of the certificate of incorporation of the enterprise by the state;
    2.1.4 A copy of the certificate of registration of the enterprise with tax authorities for physical persons engaged in entrepreneurial activities;
    2.1.5 A payment receipt for the state licensing fee;
    2.1.6 Copies of documents certifying the right of the applicant to use each location shown in the application (property right, lease, use permit, etc.);
    2.1.7 Requirements and conditions for obtaining licenses (all locations shown in the application must meet the requirements and conditions for getting the license):
    — Certificates from the local police department on the protection of the printing house(s), from the local sanitary-epidemiological station, and from the fire protection service;
    — List of assembled or to be assembled typographic equipment and devices, indicating their number and trade mark;
    — Certificates from the sanitary-epidemiological station and fire protection service certifying that the location of the printing house meets the requirements of existing norms;
    — Certificate of the State Teleradio Broadcasting Committee of the Republic of Azerbaijan on locations for broadcasting radio and television programs and on their technical conditions;
    — The certificate of the local police department on the special system of giving permission for entry and exit of the broadcasting location;
    — A copy of the license of the State Commission for Radio Frequencies of the Republic of Azerbaijan which allows radio and television broadcasting;
    — The applicant’s regulations for the intended activity and certificates from the local sanitary-epidemiological station and the fire protection service.
    2.2 It is forbidden to demand the submission of additional documents from the applicant which are not provided for in these Regulations.
    2.3 The application and other documents as provided for in these Regulations are submitted to the Ministry of Press and Information, where they are registered and considered. If no deficiency is discovered in the documents and no grounds are found for refusal, a decision on granting the license is adopted no later than fifteen days after the submission of documents.
    If deficiencies are discovered in the submitted documents, the applicant is informed in writing. After the removal of the deficiencies and repeated submission of documents, the case is reconsidered within five days of the re-submission of documents and a corresponding decision is adopted.
    If the license is refused pursuant to these Regulations, the applicant must be informed in writing indicating the reasons.
    If the dates shown in these Regulations fall on weekends or holidays, the next working day is considered to be the last day of the time period.
    2.4 The applicant is refused a license in the following cases:
    2.4.1 If the documents provided for in these Regulations are not submitted;
    2.4.2 If incorrect or distorted data are discovered in the submitted documents;
    2.4.3 If the applicant lacks necessary conditions for the intended type of activity as provided for in these Regulations;
    2.4.4 If the applicant and the employed personnel lack necessary qualifications as provided for in these Regulations;
    2.4.5 If two years have not passed following liquidation by the licenser of a previous license for the same type of activity;
    2.4.6 If the applicant applies for the license within the term of suspension of a previously granted license for the same activity;
    2.4.7 In other cases as provided by legislation.
    2.5 The applicant is entitled to appeal to the Ministry of Press and Information after removal of conditions which served as reasons for the refusal as provided by these Regulations, or to the court if he does not agree with the refusal.
    2.6 When the enterprise, organization, office is liquidated, or the certificate given to the physical person for functioning as an entrepreneur becomes invalid, the licenses granted to legal and physical persons also become invalid.
    If the legal person changes in name or legal status, or if the data on the identity card of the physical person changes, or the license is lost, an application for validation of the license must be submitted within fifteen days. The validation of the license is performed pursuant to procedures determined for this purpose.
    In the period of validation of the license, the licensee conducts business on the basis of the previous license (on the basis of copies of licenses granted for various locations). In case of loss of the license, the licensee functions on the basis of a temporary permission (license) (on the basis of copies of the previous license granted for various location) given by the Ministry of Press and Information. The temporary permission (license) is granted only after the submission of all necessary documents for the validation of the license.
    The provisional license is stamped and signed by the top official of the Ministry of Press and Information.

. . . .

4. The term of licenses

    4.1 Licenses are granted for the term of three years.
    4.2 Extension of the term of validity of licenses is performed pursuant to the procedures for its granting.
    4.3 After expiration of the term of validity of licenses, the licenses and their copies become invalid.

. . . .

6. The control of the use of the license

    6.1 Pursuant to these Regulations, licensees must follow the following rules when engaged in the indicated type of activity:
    6.1.1 The licensee:
    — Must follow the rules for the production locations and their technical as well as fire protection and sanitary rules;
    — Must obey the laws of the Republic of Azerbaijan “On Mass Media”, “On State Secrets”, “On Copyright and Related Rights”;
    — Must implement the policy of the state, must not allow broadcasting of programs, materials and descriptions which contradict the traditions and customs, historical heritage and harm the morals of citizens;
    — Must not allow the monopolization of radio and television broadcasting.
    6.1.2 Must obey existing rules and norms in printing.
    6.2 The control of the use of licenses is executed by the Ministry of Press and Information.
    6.3 Subject to the rules of control, the Ministry of Press and Information is entitled to do the following:
    6.3.1 Examine the conformity of the type of activity with the legal acts which regulate their execution;
    6.3.2 Obtain necessary information from the licensee concerning questions arising in the process of examination and demand necessary explanation;
    6.3.3 Write a report on the results of the examination indicating the violations and setting terms for their removal;
    6.3.4 Warn the licensee of discovered violations;
    6.3.5 Consider the issue of suspension or liquidation of the license.
    6.4 The licensee is obliged to allow representatives of the Ministry of Press and Information entry for site inspection, to create necessary conditions for inspection and to produce the documents demanded for examination.
    6.5 A report in duplicate shows the results of the inspection and is signed by representatives of the Ministry of Press and Information and the licensee (the top official of the enterprise). A copy of the explanation of the licensee (top official of the enterprise) is attached to the report. A copy of the report is kept by the licensee).
    6.6 The Ministry of Press and Information may include representatives of corresponding organizations in examinations as needed, in accordance with these Regulations.

7. Suspension and Liquidation of Licenses

    7.1 The Ministry of Press and Information may suspend licenses in the following cases:
    7.1.1 If the licensee requests suspension of the license;
    7.1.2 If the licensee does not follow legal acts, or if the activities of the licensee are suspended by corresponding state agencies pursuant to legislation of the Republic of Azerbaijan;
    7.1.3 If bankruptcy of the licensee is confirmed by legislation of the Republic of Azerbaijan;
    7.1.4 If it is discovered that the terms and conditions for the execution of this type of activity as required by these Regulations have been violated;
    7.1.5 If the printing enterprise violates terms of licenses, including copyright;
    7.1.6 If the printing enterprise has been warned of violation of current standards, labor law, protection of environment, fire protection and sanitary conditions for at least two years;
    7.1.7 In other cases as provided by the legislation.
    7.2 The Ministry of Press and Information informs the licensee and the tax authority of its decision regarding suspension of the license within five days of the decision.
    If the conditions serving as reasons for the suspension of the license change, the license may be restored after an appeal of the licensee. If the Ministry of Press and Information adopts a corresponding decision on the restoration of the license, it is regarded to be restored. After the adoption of such a decision the licensee and the tax authority are informed in writing of the decision within five days.
    7.3 The Ministry of Press and Information liquidates licenses in the following cases:
    7.3.1 If the licensee requests liquidation of the license;
    7.3.2 If incorrect data are discovered in documents submitted for obtaining the license;
    7.3.3 If the terms and conditions of the license are violated by the licensee;
    7.3.4 If there is a corresponding court decision;
    7.3.5 If the legal entity is liquidated or the state registration certificate given to the physical person who functions as an entrepreneur loses effect;
    7.3.6 In other cases as provided for by legislation of the Republic of Azerbaijan.
    7.4 The Ministry of Press and Information informs the licensee and the state tax authorities in writing within five days of the decision on the liquidation of the license.
    7.5 The decision on the suspension, liquidation, or restoration of the license also effects the copies of the license granted for different locations pursuant to these Regulations.
    7.6 The Ministry of Press and Information registers granted, registered, suspended, restored and liquidated licenses.

8. Responsibilities

    8.1 Officials of the Ministry of Press and Information bear responsibility as provided by current legislation for violation of legislation of the Republic of Azerbaijan concerning licensing, and for improper execution of this legislation.
    8.2 Decisions and improper actions of the Ministry of Press and Information may be appealed to the court as provided by legislation.
    8.3 Persons engaged in the types of activities referred to in these Regulations without licenses bear responsibility pursuant to current legislation.

Private Broadcast Media in Azerbaijan—Situation Summary in May 1998
    There are fifteen private TV stations and three private radio stations in Azerbaijan.

    The main problem facing private broadcasters is the lack of adequate and adequately enforced legislation regulating their registration, licensing, and operation. The legislative base for private broadcasting was until recently limited to the 1992 “Law on the Mass Media,” which is tailored to print and does not provide direction for licensing broadcasting frequencies. Nine of the private TV stations are not currently on the air because, although most of them have been trying for several years, the government has not issued them frequency licenses.

    According to the 1992 “Law on the Mass Media,” mass media have to register with the Ministry of Press and Information, a process all the stations have undergone. The 1996 “Law on the Registration of Legal Entities” requires that a station also register with the Ministry of Justice. After registration in these two ministries, stations had to apply for a frequency. This request could be submitted either to the Ministry of Communications or to the “Frequency Commission” with the Cabinet of Ministers. On the basis of “internal regulations,” these institutions decided on the availability of frequencies and issued frequency licenses. Both the registration with the Ministry of Justice and the issuance of a license often depended on bribes, and station directors have informed Internews that the processing of their documents has been made dependent on approval by the presidential apparatus, which is not officially required and extremely difficult to obtain.

    In April, the Cabinet of Ministers adopted “Regulations on granting licenses for television and radio broadcasting and the printing business.” While this document should have provided clarification of what steps stations have to undertake to receive a frequency license, it makes the process less clear. According to the regulations, stations now have to obtain a frequency from the “Frequency Commission” before requesting a license from the Ministry of Press and Information. The Ministry of Communications, which until recently was responsible for issuing licenses, is not even mentioned. Nevertheless, this Ministry still approaches stations with regard to the renewal of licenses and requests prior re-registration with the Ministry of Press and Information, which the Ministry of Press and Information does not grant as they regard their license as the final step. Apart from this, the new regulations require that stations receive, among a long list of other documents, a certificate from the State Broadcasting Company which approves of the broadcasting locations and their technical condition. The main competitor of private broadcasters is, thus, in a position to decide whether they have a right to exist or not! Protests of private broadcasters and journalists’ associations against these regulations, which also contain numerous other problematic points, have so far remained unanswered.

    At the moment, it is not entirely clear whether the stations that hold an old license from the Ministry of Communications are currently broadcasting legally or not. And those stations that have been trying for years to acquire a license have to start the process all over again. The situation today is as follows:

    Four TV stations and two radio stations have a frequency license: ANS TV/Radio in Baku, Kapaz TV in Ganca, and Sara TV/Radio and Space TV in Baku. The first two were registered and received frequency licenses under previous governments. Sara is expressly apolitical and broadcasts entertainment but no news, and Space completed its registration and licensing process last year, thanks to its extremely close relations with the current government.

    At the beginning of the year, four TV stations which broadcast for several years were closed down on explicit orders from the Prosecutor General and the Ministry of Communications (Aygun TV in Zaqatala, Krosna TV in Balakan, Qutb TV in Quba, and Simurq TV in Tovuz. Mingacevir TV in Mingacevir was temporarily off the air at the time due to technical problems). The reason was that they had not completed their registration and licensing process and were therefore operating illegally. Krosna TV and Qutb TV re-opened in April and May on the basis of oral agreements with their respective local governments; Aygun TV and Simurq TV are hoping to achieve the same. But none of these stations has, in the meantime, obtained a license, and they will still be threatened by closure should they incur the wrath of the government.

    In addition to the nine TV stations that were on the air in December 1997, three Baku stations (Antenn TV, Insan TV, and BTR TV/Radio) have been trying to register for as long as three years but have not been allowed to acquire a frequency license. Unlike stations in other cities which can often reach accommodation with the local government to broadcast without a license, it is almost impossible for stations in Baku to operate as pirates.

    New stations have been established in Baku (Odlar Yurdu TV), Sheki (Sheki TV), and Evlax (Sarai TV). But they are facing the same obstacles as the stations mentioned above.

    Other problems private stations elsewhere in the NIS face are no less present in Azerbaijan than there. They include difficulties in making enough money from advertising to support a station’s operation, as well as a lack of skills and infrastructure problems, such as frequent power cuts. But without frequencies, stations cannot even attempt to create the commercially successful independent broadcasters so important to a vibrant civil society and to a market economy.

Andrea Stallknecht
Internews Azerbaijan