On Wednesday, prosecutors Vladimir Mara and Dritan Prençi of the Serious Crimes Prosecution issued a gag order banning the media from publishing wiretaps of the Albanian Electiongate.
The prosecutors ordered:
[The] banning of publication of criminal proceedings no. 339, 2016, through the press or any other form of mass media.
The order came a few hours after the German newspaper Bild published several audio recordings evidencing collusion between Socialist Party senior officials and an organized crime group to buy votes for the 2017 general elections in Albania.
Case file no. 339 involves an investigation into the Avdylaj criminal group, who are facing charges of international drug trafficking, among others.
The prosecution had wiretapped the phones of several suspected members of the group. According to some reports, dozens of CDs containing the recorded calls have been in the hands of the prosecution for more than one year.
The published wiretaps revealed that several Socialist Party officials had colluded with the criminal group in vote-buying and threatening and intimidating voters.
The prosecutors’ order followed two statements by the General Prosecutor’s Office and Serious Crimes Prosecution Office on the same day, which both condemned the leaks and put direct pressure on the media not to publish the wiretaps. Both statements had strong political undertones.
The General Prosecutor Office, headed by Arta Marku, stated that wiretaps were “contaminating” the public opinion. It blamed prosecutors and other employees for leaking the recordings to the media, and called for a swift investigation into the matter.
The General Prosecutor feels resentful that there are still militant prosecutors and other employees who are ready to trade criminal files for small personal gains, thus contaminating the public opinion with information that has not been investigated and verified by them, in their capacity as authorities responsible for the investigation and verification.
The Serious Crimes Prosecution headed by Donika Prela also joined the public condemnation of the leaked information.
In our assessment [the leak] was made to hinder the investigation, prejudging and further complicating the investigation of this case.
The statement added that the prosecution has initiated an investigation for “active/passive corruption in elections.” The investigation is based on suspicions that “local representatives of different political subjects throughout the whole political spectrum” were involved in corruption in the 2017 general elections in Durrës and Lezha.
Let us look at some revelations stemming from the gag order and two statements.
First, the gag order issued by prosecutors Mara and Prençi was aimed at intimidating the media and hindering free speech. It violates the Albanian Constitution and international laws.
Former Albanian judge in the European Court of Human Rights (ECtHR) Ledi Bianku pointed at two cases when the ECtHR reached the decision that a state authority cannot ban the publishing of leaked information, as this constitutes a violation of freedom of expression. The two cases are “The Sunday Times v. The United Kingdom” and “The Observer and The Guardian v. United Kingdom.”
Furthermore, the cases show that procedures for restricting the publication of any specific information are complex, and restrictions have to be detailed, which takes a long time to draft. The swift order issued by prosecutors shows their astonishing and sheer ignorance of the legal framework in which they operate.
Second, it is surprising to have such a gag order issued at a time when the governing Socialist Party is in dire straits as a result of the insistent opposition protests against vote-buying, corruption, and links to organized crime. Leaks from the same case file also published several months ago by the Voice of America and BIRN, but back then prosecutors issued no such order. However, they started an investigation into the publication.
Their attempt this time to ban the media from further publishing the materials can only be interpreted as a political move in support of the governing Socialist Party.
Third, the prosecution offices didn’t address the main issues which have concerned the public opinion: How come they are so quick to start investigating into the leaks, while for more than a year they took no concrete steps in investigating Socialist Party officials appearing in collusion with criminal bosses in criminal activities? How come the prosecutors didn’t order the arrest of any of the figures involved? On the other hand, surprisingly or not, they also failed to condemn in any kind of way the fact that senior politicians have been caught in possible collusion with dangerous criminals.
Fourth, the statement of the Serious Crimes Prosecution reveals a paradox that leads one to the political target it aims at. The paradox is this: in its condemnation of the leaks, the prosecution itself leaked information on the ongoing investigation into case file no. 339. The prosecutors revealed, certainly not quite accidentally, that investigations into representatives of “political subjects throughout the whole political spectrum” are ongoing. This is a direct attempt to quench the public dissent against the Edi Rama government. It distracts the public’s attention away from Mayor Vangjush Dako and Prime Minister Edi Rama. It also aims at scattering the responsibility around while trying to scare the opposition.
Lastly, the implications of this illegal gag order on the freedom of media in Albania is alarming. Albanian journalists already practice self-censorship due to fear of intimidation, threats, or losing their jobs. This latest move could send waves of fear through an already under-threat profession. Furthermore, the judicial harassment of journalists is a tactic often employed by authoritarian leaders or those looking to tighten their grip on the fourth pillar of democracy.
Threatening journalists with prison, lawsuits, or crippling legal processes has been widely condemned by international human rights and media freedom organisations who call it an assault on democracy. The fact that the legal action the prosecution is threatening to take is also illegal and unconstitutional, shows the desire of those in power to control the media and public discourse through any means necessary.
Even Prime Minister Edi Rama may have realized that the prosecution has overshot its target, and backtracked yesterday evening during an interview with Sokol Balla on Vizion Plus, which literally streamed the “prohibited” transcript of the wiretaps behind him.
I first want to say something that seems important to say before we start, namely it’s an absurd order of the prosecution to stop media that publish and so on. It’s an absurd order that I don’t know whether it’s based on a written law or not, but I know it is wrong, because the media have the role to publish any type of thing they get their hands on. There is no limitation on this point, I believe.
UPDATE
Also yesterday, before Prime Minister Edi Rama’s statement, the Serious Crimes Prosecution Office issued a press release to clarify that the prosecutors’ order was not intended for the media.
The legal ban aims at safeguarding the investigative secrecy and is applied to all subjects of the criminal case no. 339 [registered] in year 2016, such as prosecutors, judicial police officers, lawyers, defendants and any other subject who has been presented with or is informed on the criminal proceeding acts due to their function. […]
While we appreciate the role of the media in informing the public, we inform you that the [previous] order did not aim at restricting or impinging on media freedom […]
It might be worth noting though that in its first article the order specifically and explicitly stated that the prosecutors “order the banning of publication of criminal proceedings no. 339, 2016, through the press or any other form of mass media”. Moreover, all other subjects included in yesterday’s press release were already included separately in the third article of the order.
The backtracking of both the Prime Minister and prosecution office, following condemnation and uproar from several media outlets and journalists, further corroborate the assessment that this was an attempt to silence the media, support the governing Socialist Party, as well as a clear evidence of their ignorance of the national and international legal framework.
