DECISION No. 7 OF
by the President of the
I. The provisions of Arts. 39,40 and 41 of the C. proclaim as the individual's fundamental rights the right to freely express and publicise opinion and the right to seek, obtain and disseminate information.
These provisions protect the individual's right to free performance as an equal member of the social community. These functions of the rights under Arts. 39, 40 and 41 of the C. define them as essential for individual and social development. They underlie the democratic process and enable it to function.
Together the three provisions protect various aspects of the right to freely express and publicise opinion and the right to seek, obtain and disseminate information. The three provisions are in systemic and functional relation.
Art. 40 para 1 of the C. proclaims the principle that the press and the other mass media are free. It is explicitly stated that there shall be no censorship.
The right to seek, obtain and disseminate information under Art. 41 para 1 of the C. belongs to any physical person or legal entity. On the other hand, Art. 41 para 2 of the C. guarantees to citizens access to information from a government institution or department on matters in which they have legitimate interest.
The separate rights provided for by Arts. 39-41 of the C. bind the Government to abstain from interference when they are exercised. It is admissible to curtail these rights for the sake of defence and other Constitution-defended rights and interests and curtailment can be based solely on the grounds that the Constitution provides for. There shall be no curtailment of rights other than these by a law and on grounds that are not in the Constitution. Among these grounds the possibility to interfere in the right to freely express opinion when it is detrimental to the rights and reputation of another person is the greatest as in this way the honour, dignity and reputation of a person are defended under Art. 4 para 2 and Art. 32 para 1 sentence 2 of the C. This Constitution-sanctioned curtailment is not to be understood as prevention of public criticism, particularly of politicians, government officials and government institutions.
The restriction on statements that appeal to fan up hatred derives from the Constitution-honoured values like tolerance, mutual respect and the ban to preach hatred on a racial, national, ethnic or religious basis. That curtailment though does not refuse protection to the diversity of opposite opinions.
Along with the individual's right to freely express and disseminate opinion through various channels Art. 40 para 1 of the C. proclaims freedom of press and other media and bans censorship. The express ban on censorship reflects the principle of inadmissibility for government institutions to interfere in any way in the media.
For legal and technical reasons a law may regulate organisational, structural and financial aspects of the work of the electronic media. Such a law must guarantee the independence of these media in terms of organisation, structure, personnel, programme and finance. Making the national electronic media sovereign and independent institutions requires relevant management and/or supervisory bodies to preclude the interference by government institutions, political factors or representatives of private interest. Such interference by government institutions would be censorship in the sense of Art. 40 para 1 of the C. Independent management, editing and accountability for the broadcasting pattern and programme content, free recruitment and funding mechanisms will guarantee the right of the public to obtain complete, pluralist, balanced and faithful information.
Licensing the non-government electronic media falls within the legislative competence of the Government in abidance by a law and in compliance with the principle of Art. 40 para 1 of the C., however, applying the Constitution-sanctioned curtailments only while seeing that the procedure is transparent and fair.
Measures in pursuance to Art. 40 para 2 of the C. are the only admissible ways of direct interference in the media. These fall within the competence of the Judiciary and under the terms as described in this regulation.
The right to seek and obtain information under Art. 41 para 1 of the C. encompasses the government institutions' obligation to guarantee access to information of public significance. The content of that obligation is subject to legislative definition.