The arrest of journalists Xhoi Malësia and Qamil Xhani during the protests of December 2020 was another blow to freedom of speech and press in Albania. The reaction of local and international organizations was immediate. This act violated a right protected not only by the Constitution of the Republic of Albania, but by international conventions towards which Albania has an obligation to strictly implement.
The case was reported to the Council of Europe’s “Platform to promote the protection of journalism and safety of journalists”, and recently the State Police responded to the clarification request sent by the CoE. For those who are familiar with the protection of free speech and press, the clarification in question leaves much to be desired, and suggests that the institutions which are supposed to guarantee the respect and protection of this right, do not recognize the law to which they themselves refer.
In both cases, Albanian institutions justify the arrest of journalists Malësia and Xhani with their refusal and/or inability to identify themselves as journalists. At the time of his arrest, Malësia was reporting directly on ORA Radio-Television, while Xhani was at the entrance of the editorial office of newspaper Koha Jonë, from where he was filming the moment when the police were using force against protesters. It is worth mentioning that even if Malësia and Xhani were part of the protest, in those circumstances the police had no right to arrest them.
The fact that they were arrested while they were gathering information is the moment in which the police committed the violation which they try not only to justify, but also put on the legal veil in an absurd way by shifting the burden on journalists.
“The General Directorate of State Police expresses its regret for those circumstances, and at the same time encourages the work of the journalists in the service of public information, by respecting the rules and procedures, according to domestic legislation” said the police in its clarification sent to the CoE.
While domestic law is clear on the protection of free speech and journalists, it’s worth recalling that as a member state of the Council of Europe, Albania has obligations towards the European Convention on Human Rights, which it has ratified and which “constitutes part of the domestic legal system” pursuant to Article 122 (1) of the Constitution.
It’s also worth reminding the Albanian police that, according to the Constitution, Article 122 (2), the Convention takes precedence over a law which does not comply with it. This includes the jurisprudence of the European Court of Human Rights, which with its decisions interprets the convention and sets a precedent, the standards of which must be respected by each member state.
Albanian authorities can check one of the latest cases of the ECHR, which coincides with the cases of the journalists in question, especially that of Mr. Malësia.
In Butkevitch v. Russia, the Court clarified that the collection of information is an essential element in journalism, and an essential part of the protection of press freedom. The Court ruled that the arrest of Butkevich while he was taking pictures and gathering information during the protest constituted a violation of Article 10 of the Convention. That would be enough to conclude that the arrests of journalists Malësia e Xhani violated the convention.
But the Court went on and set an even higher standard, ruling that although journalist Butkevitch had not been allocated on the ground by the media where he worked, he still enjoyed the protection of the convention.
Precisely, this conclusion of the court rejects any justification of the police regarding the allegation that Malësia and Xhani could not be identified as journalists. The fact that they have been gathering information on an event of public interest, the convention offers them a protection which cannot be altered even by domestic law which the police refer to without offering any legal arguments.
