DECISION No. 7 OF
Motion
by the President of the
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.