FACTS

In the National Assembly of the eighth convocation, especially in the last year, it has become frequent for journalists’ accreditations to be terminated or applications for accreditation to be denied. Following an analysis of these cases, the Information Disputes Council has recorded a number of legal violations.[1] Journalistic organizations, in turn, issued a statement, expressing their concerns regarding the Regulation on Journalist Accreditation in the National Assembly (hereinafter also referred to as the Regulation) and the legal procedures implemented on its basis. Taking these factors into account, the IDC decided, on its own initiative, to examine the Regulation and release an opinion on its problematic provisions.

CONCLUSION

The Regulation on Journalist Accreditation in the National Assembly was adopted by the NA Council on December 27, 2017. On December 2, 2024, the Regulation was amended, and the document is currently in effect in its revised form.

The Regulation derives from Article 6 of the Law “On Mass Communication,” which establishes journalists’ right to be accredited in public bodies and a number of key procedural principles necessary for its execution, which these bodies are obliged to ensure in their internal legal acts as minimum requirements. At the same time, public bodies may provide for more detailed procedures; however, any restrictions introduced should not go beyond those specified in the aforementioned law.

One of the key principles set out in the Regulation is that accreditation constitutes a right of media outlets, rather than a requirement imposed by public bodies. Consequently, these bodies are only entitled to register an application, which cannot be interpreted and applied as a permit. This approach derives from Article 6 of the Law “On Mass Communication,” which was incorporated from international law. As a result, there is a presumption in favor of granting accreditation. This means that an application for accreditation may be rejected, or an existing accreditation terminated only in cases of strict necessity conditioned by the public interest.[2]

Accreditation is a means of exercising the right to receive and disseminate information and ideas. Accordingly, any interference with this right must meet the requirements of Article 42(3) of the RA Constitution and Article 10(2) of the European Convention on Human Rights, namely the protection of national security, public order, health and morals, the honor and reputation of other individuals, and other fundamental rights and freedoms. Accordingly, the failure to meet the formal requirements of an accreditation application does not constitute grounds for rejecting that application. Similarly, a journalist’s violation of the regulation governing activities within a public body is not, by itself, sufficient to terminate their accreditation, unless such a measure is genuinely necessary to protect the public interest or the interests of others (this approach derives from the principle of proportionality enshrined in Article 78 of the Constitution).

With regard to the general principle of legality, the grounds and procedures for accreditation must be consistent with legal certainty, which also constitutes a fundamental principle of both international law and the RA Constitution. This implies that the norms contained in the Regulation should not be vague or ambiguous; rather, in each case they should ensure sufficient predictability and clarity to make the potential consequences of their application or violation plainly apparent.

The processes for granting or terminating accreditation should be regulated by administrative procedures and substantive legal grounds. This allows for the effective implementation of the above-mentioned legal principles, since these procedures are enshrined in the RA Law “On Fundamentals of Administrative Action and Administrative Proceedings.” Journalists’ accreditation, its termination or denial cannot be regulated outside the framework of this law, as they constitute processes that determine rights and obligations. Based on the above-mentioned general legal principles, the IDC will address the controversial norms contained in the Regulation and the negative practices conditioned by them.

To begin with, while reviewing a number of disputes and complaints, the IDC has observed that the relevant departments or officials of the National Assembly tend to avoid implementing the rejection of journalists’ accreditation applications or the termination of accreditation through administrative action, opting instead to address them in a written response format. The IDC believes that decisions related to accreditation should be taken by the competent bodies of the NA through administrative action, by adopting an appropriate act. Only in this way can the principles of legality and legal certainty be effectively ensured. A clear position on this matter has been expressed by the Court of Cassation (April 16, 2024 decision of the Court of Cassation regarding the case of “Knarik Manukyan v. NA Staff” in administrative case No. VD/1751/05/24).

Certain norms of the Accreditation Regulation carry the risk of being interpreted in different ways and, in practice, also contribute to the disregard of the principles of legal certainty, legality and proportionality. In particular, paragraph 8 of the Regulation sets out a number of conditions that are not reflected in the Law “On Mass Communication.” According to this paragraph, journalists, photographers and videographers of daily newspapers, magazines and weeklies with a circulation of 1,000 or more copies, as well as media outlets with 2000 or more visitors per day that are updated at least daily, all registered with the Ministry of Justice,  may be accredited in the National Assembly. Meanwhile, the Law “On Mass Communication” defines “media” merely as a means for reporting distributed in periodic issues, each bearing a permanent name, issue number, and date. In other words, the Council of the National Assembly has introduced additional conditions in the Regulation that are more restrictive than those provided for under the law. In this case, such extra restrictions do not stem from the public interest and are not required in a democratic society.

According to Article 6(1) of the RA Constitution, state bodies and officials are permitted to carry out only those actions for which they are authorized by the Constitution or by laws. Since the requirements set out in paragraph 8(1) of the Regulation are not provided for by law, their application by NA officials is unlawful. Should the counterargument be raised that the National Assembly is entitled to interpret and determine in its own manner the meaning of the term “periodic issues” provided in the law, the aforementioned article of the Constitution nevertheless precludes the parliament from establishing conditions in its internal legal act, which, although derived from the law, provide for broader restrictions than those set out in the law.

Paragraph 8 of the Regulation also stipulates that only daily newspapers, magazines, and weeklies registered with the Ministry of Justice may be granted accreditation. However, the Law “On Mass Communication” does not prescribe any form of official registration of media. Consequently, this requirement of the Regulation is not stipulated by law either and cannot be applied.

Another provision of the same paragraph in the document, according to which “updated at least daily” is interpreted as “publishing a minimum of ten (10) political pieces per day,” is problematic, as it prompts the question of why accreditation in the NA would be limited solely to media outlets producing political content. The fact that the National Assembly is a political body does not at all mean that it addresses exclusively political issues. The public has the right to receive information on all areas addressed by the parliament. Hence, this condition in the Regulation constitutes a disproportionate restriction on the right to freedom of expression.

The regulation of paragraph 16(5) of the same document, according to which an accreditation application shall be rejected if “a journalist nominated for accreditation by an entity carrying out media activities has received two warnings from the Staff within the year preceding the moment of accreditation,” is abused in practice: there have been documented cases when the Staff treated a single violation as two artificially separated episodes and applied this provision. Notably, the same approach was also demonstrated in another case, when a decision was made to promptly terminate the already existing NA accreditation of a journalist. However, such an arbitrary interpretation would not have made it possible to reject the application or terminate the granted accreditation had the Staff, as noted earlier, taken its decisions within the framework of administrative action and through an act adopted as a result thereof. In other words, the problem in this case is caused by unlawful actions rather than the vagueness of the legal norm.

In the past, issues have also arisen in the application of paragraph 17(3) of the Regulation. This provision is closely linked to subparagraph 5 of paragraph 22, which requires journalists to carry out their professional activities in specifically designated areas within the NA premises. These areas include the hall opposite the session chamber, the press lodge, and other areas of the National Assembly building arranged in advance with a deputy. In the event of a breach of this requirement, paragraph 17(3) stipulates that the journalist’s accreditation shall be terminated prematurely.

Addressing this matter, the Information Disputes Council stated in its Opinion No. 97 that the aforementioned regulation does not provide for any alternative. Specifically, it does not grant journalists the possibility, in cases of strict necessity or urgency, to ask questions to National Assembly deputies or other individuals anywhere within the National Assembly building, including its corridors, without the risk of being held liable. Based on the legal norms[3] in force in various countries and the principles of international law, including the positions expressed by the European Court of Human Rights, the IDC concluded that although the restrictions in question pursue legitimate aims, the absence of the aforementioned alternative may, in certain circumstances, disproportionately hinder the exercise of the right to disseminate information and ideas.

In particular, the European Court examined a similar dispute in the case of “Mandli and Others v. Hungary,” which concerned the suspension of a journalist’s accreditation for having posed a question to the Prime Minister about a matter of public significance in an area of the parliamentary building not designated for journalistic activities. With respect to this matter, the ECHR concluded that, although the restriction imposed in the parliament pursued the legitimate objective of maintaining a conducive working environment and maintaining order in the building, the decision to suspend the media representative’s accreditation was disproportionate in relation to that objective. It is particularly significant that the journalist was also deprived of the opportunity to participate in the decision-making procedure concerning him, and the decision itself did not specify any time limit for the suspension of accreditation. As a result, the ECHR determined that such procedures had unlawfully restricted the journalist’s right to impart information and ideas under Article 10 of the European Convention.[4]

In this sense, paragraph 22(5) of the Regulation in effect in the National Assembly continues to be an issue, as it sets out an exhaustive list of areas where journalistic activity is permitted, without providing any alternative for situations in which it is necessary to urgently pose questions. The IDC believes that this regulation should be amended to provide journalists with the possibility of carrying out their professional activities in any area of the NA premises, regardless of the existence of a prior agreement with deputies. At the same time, the IDC does not rule out the application of restrictions; however, such restrictions must be specific, clearly defined and foreseeable, adhere to the legitimate objectives outlined in Article 42(3) of the RA Constitution and Article 10(2) of the European Convention on Human Rights, and be conditioned by an urgent public necessity.

Information Disputes Council

Shushan Doydoyan (IDC Secretary), President of Freedom of Information Center

Boris Navasardian, Honorary President of Yerevan Press Club

Aram Abrahamyan, Chief Editor of “Aravot” Daily

Ashot Melikyan, Chairman of Committee to Protect Freedom of Expression

Ara Ghazaryan, Director of “Ara Ghazaryan” Law Firm

Olga Safaryan, Lawyer

[1] See IDC Opinions No. 97, 102, and 122

[2]OSCE Special Report: Accreditation of Journalists in the OSCE Area: Observations and Recommendations, October 25, 2006, p. 3

[3] Opinion No. 97 includes examples drawn from the legal documents of the parliaments of England, the Netherlands, Scotland, and Switzerland.

[4] See Mandli and Others v. Hungary, Application No. 63164/16, 26/05/2020, paragraphs 70 and 73