Introduction

Nominally, Belarus remains a country that has not ratified the European Convention on Human Rights and Fundamental Freedoms of 1950 (further in the text – the Convention) and not being the member of the Council of Europe. This provision can question the worth (practical need) of the native research in the realm of the case law of the Council of Europe and, in particular, of the European Court of Human Rights' (further – the Court) decisions concerning the interpretation of the freedom of speech principle. Vehemently opposing such belief, we would like to primarily provide some arguments for the relevance of such research in Belarus.

Firstly, Belarus is the only European state not to join formally the institutions of the Council of Europe. Even such countries as Georgia and Turkey have already ratified the European Convention. Moreover, a constant discussion about the gradual entry to the Council of Europe and ratifying the Convention is waged in Belarus. We can forecast with much confidence that it will finally succeed in its attempts.

Secondly, the possibility of referring to the European Court decisions in the Belarusian legal system has been a subject of frequent debates both in the juridical literature [1] and in the official documents of the higher legal bodies [2].

Thirdly, it is in interpreting the cases for the freedom of speech that the European Court was most successful, founding a new branch in western legislation – European law on Mass Media.

Fourthly, Belarus is one of the countries highly criticized by the world community on the regular basis (various European organizations including) exactly for the problems concerning the freedom of speech, the status of mass media, criminal penalty for defamation, state monopoly on television and radio channels etc.

Fifthly, the freedom of speech is an inalienable characteristic of democratic processes and the indicator of the civil society and the constitutional state ripeness.

Thus, the European Convention turns to be the most definite criterion of a European Council member-state allegiance to the values of democracy, peace and justice. That is why it can act as an invaluable reference point in the realm of the freedom of speech for both a domestic lawyer and a judge. The Convention was signed on November, 4 1950 in Rome. During the last fifty years the fundamental principles, laid in it, provided the basis for the case law, thanks to their interpretation by the European Court of Human Rights and the European Committee on Human Rights [3]. Besides, the Council of Europe has actively adopted several additional protocols, that have expanded the scope of the Convention, as well as the field of resolutions and recommendations, which prompted the standards of acting for the member-states. Sanctions were imposed on the states violating the regulations.

As stated by a member of the European Council Coordination Committee on mass media, a renowned expert on Article 10 of the European Convention, Ms.Monica Luisa Macovei, one should not consider the Convention apart from its case law. The decisions of the European Court clarify and interpret its text. They are the precedents possessing mandatory legal effect; their legal status is equal to that of mandatory legal norms. After ratifying the Convention the official bodies of the member-state, be it the one with the civil (continental) law system, are to regard the Court decisions as mandatory law. In this connection one has to note, that nowadays it is a growing tendency even for the traditional civil law states to apply a mixed type legal system, combining the elements of civil and common law, where the decisions of a court are legally equal in status to the law passed by the Parliament [4]. This is why the present research deals mainly with the decisions of the European Court.

The freedom of speech cannot be considered apart from other rights, granted by the Convention (such as the freedom of assembly or the liberty of thought and conscience). It is natural, that at times the interpretation of the freedom of speech or thought may collide with the implementation of other rights, such as the right for just trial, for the respect of private life. The task of the Court in these cases is to determine a "balance of liberties", to grope the golden mean that will remain as a part of a normative system and turn into the principles of the legal system within the frame of the Council of Europe. That means it is the study of the case law precisely that enables us to form a consistent view of the modern all-European standards in the freedom of speech sphere. That once again proofs the necessity for such kind of analyses for domestic comparative research.

Allowing for the fact, that in the course of more than 50 years of its functioning the European Court has passed an enormous number of decisions, interpreting article 10 of the Convention either directly or marginally, let us content ourselves to the most significant ones and/or those having certain value for the analysis of the Belarusian legislature in the sphere of freedom of speech. The precedents will accordingly be classified on the following scheme that corresponds to the structure of article 10 of the Convention: freedom to have a private opinion, the freedom of press – the cases of defamation, the freedom of radio- and telecasting. A system of restrictions to the freedom of speech right implementation can constitute the subject of a separate article. It is expedient in some cases to provide pertinent extracts from the Court decisions, in other cases we'd refer to a more detailed analysis of the legal case itself. The objective of the article is not the research into the European Court case precedents. The emphasis is placed here on the inference of a certain system of right in the freedom of opinion sphere in order to gain an extensive background for further analysing the home legislation on the issue of its coming up to the European standards.

Part 1 of Article 10 of the European Convention reads:" Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises" [5].

1. The freedom of opinion.

Article 10 is to be analyzed in connection with the preceding 9^th Article, where the freedom of thought, conscience and religion are stated. In the freedom of expression a major role is allotted to the contents of the statement. The means and methods of expression are of that degree of importance, to which they possess an independent meaning for such kind of expression.

It is often noted in the juridical literature, that Article 10 embraces more cases than Article 9 does. In order to implement the latter, the view expressed should expose the belief of the one who expressed it. Article 10 makes provisions for the defence of any statement, while the way of its expression may vary depending on the statement [6]. Naturally enough, it is problematic to separate "the freedom of having one's own opinion" from "the freedom of thought" (Article 9). Therefore, the appeals to the European Court on the violation of this aspect of Article 10 will most probably contain the statement on the violation of Article 9.

One more article, linked inseparably to the abovementioned ones, is Article 8 of the Convention, for the correspondence, telephone and other ways of communication is nothing but the mode of one's private opinion expression. Moreover, the European Committee has arrived at a conclusion that the right to obtain any information via correspondence, which is regulated by Article 8 of the Convention, is lex specialis regarding Article 10 (correspondingly, lex generalis) [7].

To a certain extent Article 10 interlaces with the guarantee of the freedom of gathering if we speak about the situation, when several people make their common statement public. Even a silent demonstration, in this case, conveys a "public message" about their position, opinion and conviction.

The freedom of expressing one's opinion is among the bedrocks of a democratic society. It constitutes one of the basic preconditions for its progress and the development of every single human being. The freedom applies not only to communicating the "information" or the "ideas", which are perceived as harmless and neutral, but also to those that offend, shock or disturb [8]. Such attitude is imposed by pluralism, tolerance and broad-mindness, which are obligatory for the functioning of the "democratic society" [9].

In connection with the notable decision on the case of Sunday Times the European Court mentioned that the freedom of political views and press is a definite priority. The statement is absolutely true for the courts, the object of mediate media influence. It is generally recognized, that the courts cannot act in vacuum. Though they are the forums for conflict resolution that does entail the impossibility of preliminary discussion somewhere else, whether in specialized journals, large-circulation press or population. Mass media are not to transgress the limitations, laid down in order to render proper justice, but they are burdened with the responsibility to proliferate the information and ideas touching upon the functioning of courts, just as they are to do in the other spheres of activity that are the object of public interest. This function of mass media is accompanied by the right of the public to receive information [10].

In the disposition of the Lingens case the court recorded that although the press cannot breach the borderline, introduced inter alia to "defend the reputation of other people", it is to promulgate information and ideas on political issues, as well as on some other problems that are the object of public interest. If the objective of press is to proliferate such information and ideas, the public, from its part, has the right to receive it. The freedom of press provides the society with one of the consummate instruments that allows them to ascertain and form their opinion of the political leaders' positions. Putting it more generally, we can say that the freedom of political discussion is the pivot of a democratic society, pervading the Convention [11].

Thus, the European Court in its decisions, concerning the freedom of upholding one's personal ideas, in most cases employs the concept "public interest" as sui generis criterion to reveal the "limit of the allowed".

The term "expression" is not confined to the freedom of speech, written or spoken word, but embraces also the fields of painting, images and actions, connected with the exposition of ideas or the transmition of information. Even the clothes, under some circumstances, come within the 10^th Article. Moreover, Article 10 secures not only the contents of the information or ideas, but also the form in which they are exposed. In such a case, the printed materials, radio broadcasting, paintings, films or electronic information systems come within the jurisdiction of this Article. It follows, that the means of production, transmission and proliferation information and ideas are safeguarded by Article 10, and that the Court is to take into consideration the rapid progress in this sphere [12].

The freedom of one's opinion expression includes also the freedom in its negative perception, i.e. being free not to make any statement. The committee appealed to the fact in the K. versus Austria [13] case, thus granting the declarant the right not to deliver self-discrediting evidence in the course of the process.

Thus, grounding on the analysis of the 1^st part of Article 10, we can make a conclusion, that "the freedom of expression" comprises the following three elements:

• Freedom to hold to one's opinion.

• Freedom to acquire information and ideas.

• Freedom to proliferate information and ideas.

2. The freedom of print and the problem of defamation.

Let us dwell on the interpretation of the problems of press freedom and defamation given by the European Court, as they are of immense topicality for Belarus. For such issues the Court, in our opinion, has worked out a standard approach which, from the viewpoint of legal technique, runs all through a whole series of cases, that touch upon the issues of print or defamation:

1. The delimitation of facts from evaluating opinions.

2. The differential approach to the status of a person which is the object of the broken law.

As for the first criterion, the Court has stated the following: "while it is possible to prove the presence of facts, the evaluative opinions can not be supported by evidence… As for the latter, it is impossible to satisfy the demand for proof, which violates the freedom of its own viewpoint expression that is an indispensable part of this law, provided by Article 10 of the Convention” [14]. Furthermore, in one of the cases considered the Court openly claimed, that "the situation, when a journalist is denied the chance to express his (her) criticism, even if unable to prove its truthfulness, should be considered unsatisfying" [15].. In the very case against a journalist who accused a politician of bribery and squandering state money, the Court announced that "the concept of "journalist liberty" permits some exaggeration and even provocation."[16]

The journalists' sources of information also fall under the protection of Article 10. The Court has acknowledged the fact that protecting the journalists' sources of information is one of the basic conditions for the existence of free press [17].

As for the second evaluative criterion of the lawfulness of the public interference (the subject analysis) we have revealed, it is possible to adduce a rule-norm in the form of a hierarchy-ladder that will constitute the foundation of press functioning in the European democracies. Let us remind the reader, that we are speaking about the status of a person, who is an object of the broken law: 

 

1) Common citizens.

2) a. Public figures.

    b. State officials and other public figures.

    c. Police officials.

3) a. Prosecutor.

    b. Investigators.

    c. Judges.

4) a. Parliament deputies.

    b. Ministers.

    c. The heads of states.

By its decisions, the Court has practically developed a whole doctrine, according to which the permissibility of criticism is defined (relatively!) with the help of the above placed hierarchy. It is worth mentioning, that the approach was not laid down in any Council of Europe document. Here is an example of an advanced case norm, based on the conviction that public figures compared with "laymen" are in a better position to answer press announcements. In the resolution on the above mentioned Lingens case the Court noted: "In contrast to a private citizen, a politician is to show more tolerance for the close attention of press to each word and act of his" [18].

It is not clear in some cases whether one should place a person among the politicians (and a public person, correspondingly). To give a comprehensive account of the Courts' stance on the collision, let us study a nearly recent case Tammer against Estonia (2001), which has already grown exemplary. The reason for the case was that Mrs. Laanaru, the wife of a former well-known Estonian politician (and a political activist herself then), was called an irresponsible mother in the expressions, considered abusive in the Estonian language. As for the position of Mrs. Laanary as a public figure, the Court decreed, that:

"Despite her continued involvement in a political party, the Court does not find it established that the use of the impugned terms in relation to Ms Laanaru's private life was justified by considerations of public concern or that they bore on a matter of general importance. In particular, it has not been substantiated that her private life was among the issues that affected the public life in April 1996. The applicant's remarks could therefore scarcely be regarded as serving the public interest".

Further on the Court decreed that Article 10 was not violated [19].

One more substantial proviso was made in Lingens case:

There is no doubt that p. 2 of Article 10 enables everyone to defend one's reputation, i.e. it covers also the politicians, even if they do not act as private persons; in such cases all the ramifications of the process for the well-being of the society and the existence of an open discussion on political issues are to be considered [20]".

The Court politics concerning the judges deserves special note. Let us provide some examples.

In the Barfard against Denmark (1989) case a journalist Barfard wrote an article, accusing two allegedly incompetent judges of being biased in a certain case. He was convicted of calumny. The European Court prompted the sentence, for Mr. Barfard had no proofs for such accusations and he criticized particular judges, not the concept of employing incompetent judges. The Court regarded, that Barfard could have phrased his viewpoint without abusing the judges.

In 1987 Michael Prager had his article printed in the "Forum" magazine, where he criticized some Austrian judges of criminal courts. In particular, he charged nine judges of the district court of Vienna of treating the accused on criminal cases as convicts. Besides, he made a series of censorious remarks about a certain judge, who soon brought charges of defamation against him. Austrian courts stated that Prager's article is only partially evaluative and obliged him to pay a fine. The European Court observed that some of the accusations were extreme, no wonder it demanded explanations from Mr. Prager [21]. By proclaiming that Vienna courts treated the accused as convicts and ascribing to a certain judge irrespective and disdainful conduct while carrying out his commitments Mr. Prager, in essence, accused the judges of breaking the law and of unprofessional conduct. The Court resolved that the verdict was directed at the excessive sweep of his accusations rather than at restricting his freedom of opinion. Referring to the legal practice of the member-states, the Court decreed that Article 10 was not violated in this case.

Journalists Leo De Haes and Hugo Hijsels, who wrote for the weekly "Humo", were condemned by Belgian civil courts for rendering slanderous information about three judges. They published five articles concerning a divorce suit that resulted in granting guardianship of children to the father – a notary, accused of incest and brutal treatment of children. In their articles the journalists declare that the judges are the members of Right-wing extremist clubs, that's why they decide in favour of the notary, who is also the member of these clubs. They also accused the judges of cravenity.

The Court has once again postulated that press plays a major role in providing people with the information on the issues of public interest, including those concerning the functioning of juridical bodies [22]. Besides, the Court noted:

"The courts are the guarantors of public justice, their role is pivotal for a state, based on the supremacy of law. That is why they are to have the credit of public and accordingly be guarded against the inconsistent attacks, not allowing them to answer to the criticism".

Then the Court stated that the journalists revealed much detailed information, grounded on the profound research into all the accusations of the notary. The Court thus has acknowledged that one can not upbraid the journalists with the unconscientious fulfilment of their responsibilities. As for the personal accusations of the judges the Court decreed, that "… If to consider the situation through this case, the accusations in question are nothing else but the opinions, the truthfulness of which is unprovable. Such opinions can be exaggerated or excessive, especially when there are no facts to prove them, but the current situation is quite a different one".

The Court came to a conclusion that in this case Article 10 was indeed violated. The Court also revealed the violation of Article 6 of the Convention (the right for impartial investigation), for the Belgian courts denied the journalists access to the papers of the notary case and the right to listen to the expert evidence.

In Skalka against Poland case (2003) the Court determined the breaking of Article 10 of the Convention as a result of harsh punishment. Mr. Skalka served his punishment in the correctional facility. From there he sent a letter to the head of the Katowice district court with an appeal against the judge, who had sent him an answer to his previous petition. Mr. Skalka expressed his discontent at the judges' refusal to grant him pardon and called the justice a two-face, ignoramus, fool and imbecile. The national courts sentenced him to eight months' imprisonment for the authorities' insult.

The European Court has laid down the difference between the concepts of criticism and insult, stating that a sentence for insult does not breach Article 10. The Court marked that Skalka did not formulate any definite pretensions to the letter received from the judge. He just expressed his dissatisfaction and grievance. However, the Court postulated that an eight-month imprisonment goes beyond the "necessary" exception to the freedom of expression [23].

Some other categories of public figures comprise civil servants, such as prosecutors, police authorities; company managers, the heads of foreign states and celebrities, including film stars and in some countries – the members of the royal family.

In terms of the Convention, the basic purpose of criminal law on defamation is the protection of "the reputation or the rights of other people". It is permissible to pursue this purpose, plainly called in Article 10 a justifiable reason for restricting the freedom of expression, to the extent it does not violate other principles of Article [24].

The European Court has several times considered the cases on criminal prosecution or civil suits concerning defamation. With time, a set of principles on such issues has been worked out. In the beginning the Court always refers to an extreme importance of the freedom to express one's opinion in general and particularly stresses its role in the functioning of a democratic system.

Even if we assume that the freedom of expression restriction has a lawful objective, as stated in Article 10, the limitation should be "necessary in a democratic state". The verification for necessity, amid other examinations, determines whether a particular limitation corresponds to the criterion of "commensurability". In practice, the Court has worked out a certain vision of the problem, under which the criminal law on defamation can hardly fit with the criterion. The threat itself of being registered as a criminal, of criminal punishment – even if the result is probation, - all this puts an unnecessary pressure on a human being (the subject of opinion expression). This vision is grounded on three reasons, stated by the Court. The above characterized legislation:

• Gives rise to "the atmosphere of fear", creating insurmountable barriers for the implementation of the freedom of press rights, which enjoy the protection of the Convention [25].

• Unlawfully shifts the burden of maintaining his/her innocence to the defendant [26].

• Is not the only one, within which such collisions can be resolved, i.e. the issues of malevolent defamation pertain to the realm of civil law [27].

Moreover, the threat of applying criminal sanctions hampers any heated public debate. Because of this the Court rarely concurs with the local courts' verdicts on defamation and nearly never with those committing the defendants to imprisonment [28].

In our opinion, such stance of the Court can be an illustration to the influence of common law on the continental system, where defamation was traditionally considered to be a criminal offence. In the states of common law defamation from old times has been considered within the frame of civil law. What is more, the conception of public figures, for instance, was elaborated in the courts of the USA (starting with the 1964 decision of the US Supreme Court on Sullivan case), and only after this was it employed by several European states and finally consolidated the avail of its evolution in the decisions of the European Court for the Protection of Human rights.

In the frame of defamation cases and the above adduced criteria, on which the Court bases its decisions on the "permissibility" of public expression of one's tidings-opinions (fact/assessed value and the status of a person), one should differentiate between:

1. The expression of mendacious (contrary to fact) information.

2. The expression of truthful information, the revelation and proliferation of which constitutes the violation of someone's rights for the immunity of private life.

3. The expression, which offends or affronts (as a result of the usage of certain expressions, for instance), but does not violate the criteria of truthfulness and private life immunity.

The court proceeds from the fact that the expression and proliferation of mendacious or affronting information, which violates someone's right for the immunity of private life do not fall under Article 10. Apropos, such approach is no more valid if some principle from another category is applicable:

1. By public figures.

2. Those who can not be ascribed to public figures [29].

Grounding on the analysis adduced, one can make following conclusions, especially relevant for the Belarusian lawmakers:

1. Those enforcing law are to differentiate between the facts and the evaluative opinions (the latter enjoy a higher degree of protection).

2. The Court is to differentiate the subjects of a supposed offence (common citizens enjoy a higher level of protection).

3. Possible is also the protection of the right for offensive statements, for under certain circumstance the information that offends, shocks or arouses concern may be protected. The harshness of the statement and the circumstances are taken into consideration.

4. The Court takes a critical attitude towards the existence of criminal liability for defamation, though it does not consider the measures to contain defamation to be superfluous.

5. The Court tolerates imprisonment for defamation, though the term of it or the amount of fine for the damage are to be commensurate with the aim pursued. The sum to cover the damage may not be so high as to produce the danger of the journalist's or the periodical's bankruptcy.

6. The right of a journalist to safeguard his/her sources of information is unshakable, including the immunity of the latter from house and work searches, if these measures are taken to unveil the entity of the intelligencer.

3. The freedom of radio- and telebroadcasts.

According to p.1 of Article 10 the right for receiving and proliferating information and ideas "does not preclude the government from licensing radio, television or cinematographic enterprises". But as for the freedom of radio- and telebroadcasting the doctrine of the European Court has evolved greatly. According to Ms. Monica Macovei, a member of the Council of Europe Coordination Committee on Mass Media, this clause was crammed into the Convention on the final stage of its preparation. It was caused by technical reasons, particularly the limited number of frequencies available and by the fact that at that time most European countries enjoyed monopoly for radio- and telebroadcasting. But the technical progress in the sphere contributed to the settlement of such sort of problems [30].

Let us consider the position of the Court by the example of the "Informationsverein Lentia" [31]. The subject of the case constituted the refusal of the regional Austrian post and communications authorities to grant licenses to the creation of local radio- and television agencies. The first to be denied the right was "Informationsverein Lentia", a company nurturing the plans to create a self-contained cable network, aimed at uniting the numerous cable services of the city of Linz. After the refusal was prompted by the National Department of Posts and Telecommunications, the company appealed to the Constitutional Court. The latter alluded to Article 10 of the European Convention, where it is stated that the very Article does not preclude the states from implementing licensing, including that of the case in question. Thus, according to the Constitutional Court, though that Article 10 is aimed at granting the freedom of opinion and information that does not mean that such every single company can be granted such a license. The Federal law of Austria of September, 23 1979 attributes radio- and telebroadcasting to the sphere of state regulation; the law virtually secured the broadcasting right for National Broadcasting Corporation. The Law was the only legal document to regulate the activity of the organisation. The Constitutional Court forwarded the case to the Administrative court, which, in its turn, declined the granting of the license on September, 10 1986; its verdict was a reiteration of the one by the Constitutional Court.

Four more applicants faced a similar problem. Two of them did not approach the National Court. Moreover, they did not even apply for the license, being aware of the official authorities' position on the issue.

The case grew practically epoch-making for the legal basis on European mass media. For the European Court stated that as a result "of the technological progress, attained for the last decades, these limitations can no more be justifiable by the scarcity of channels and frequencies available". It would be interesting to note, that in spite of the fact, that neither the second, nor the fourth declarant did apply for the license, the Committee decided that it was of no importance: both of them were considered to be the victims. Moreover, the whole situation was paradoxical, for the Court revealed that the state monopoly, i.e. licensing, is lawful (p.1 Article 10 of the Convention). But it conducted a detailed analysis to what extent the interference is "necessary in a democratic society". It is the above rendered analysis that is of the greatest interest (especially for a Belarusian comparativist). Amidst all the means, meant for securing respect for the values in question, the heaviest restrictions are applied by the state monopoly, namely the complete impossibility to conduct broadcasting otherwise than through the state-owned stations. A limited number of local cable stations acting within restricted area are of no serious influence. The far-reaching character of these restrictions means they can be justified only in case of absolute necessity.

As a result of the technological progress achieved in the several latest decades, one can not justify the restrictions by the lack of frequencies and channels. Besides, concerning the issue analysed, the existing limitations have largely grown dated because of the increase in the number of foreign programs, targeted at the Austrian listeners and viewers, and the decision of the Administrative Court to admit the lawfulness of their retranslation via cable. Finally, we can not deny the existence of several other less restricting decisions. As an example one can refer to the practice of some states where either the licenses are granted on some prearranged conditions, the contents of which is liable to change, or there exist various forms of private people participating in the activities of national institutions. The government of Austria supplied one more additional economic reason, namely that the Austrian market is too small for so many private stations and it would be problematic to resist their forming "private monopolies". The Court did not consider the arguments of the government persuasive. They were contrary to the practice of several European states, comparable with Austria in size, which contained the formation of "private monopolies". Their experience illustrates the baseless character of the government's cautions. Thus, the Court opines that governmental interference leading to the legal case, is non-commensurate to the aim pursued and, respectfully, is not necessary in a democratic state. In such case, Article 10 was violated.

In these conditions, the right of a state to introduce the licensing of audiovisual means of information receives a new sense and a new purpose, namely, in the sphere of the freedom and pluralism of information securing that conforms to public good [32]. The Court stated that the governments are not to regulate the licensing system of other than technical reasons, and they are not to hinder the freedom of expression, with the only cases fixed in p.2 Article 10 as exceptions. In the Groppera Radio case the Court decreed that "the states are allowed to control the organisation of broadcasting and, in particular, in its technical aspects. This does not mean, though, that the licensing procedures are not liable to p.2 Article 10. In such a case it would lead to the results contrary to the subject and the objective of Article 10 as a whole [33]". In the Autronic AG case [34] the Court acknowledged that the deployment of such devises as, for instance, satellite gadgets, does not fall under the limitation of p.1 Article 10.

The state monopoly in the sphere of audiovisual means of information as such was regarded by the Court to be thwarting to Article 10, the major reason being its impossibility to secure the diverse range of information sources. The absolute monopoly is not a necessity for a democratic society. It can only be justified in case of urgent public needs. Still, in a modern world of the new methods of broadcasting and the expansion of transboundary television, one practically can not ground the existence of monopolies. It is vica versa, the whole range of people's interests can not be satisfied by one broadcasting company" [35].

The jurisdiction of Article 10 also embraces the commercials in the audiovisual mass media, regardless of the fact that the national authorities enjoy the broad autonomy for applying restrictions here [36]. As a matter of principle, the advertising activity is to be carried out with proper responsibility to the society, paying special attention to moral values, the foundation of every democracy. The advertisement targeted at children must not contain any information, that might do them harm, it should allow for their physical, psychological and spiritual development [37].

Article 14 of the Convention prohibits any kind of discrimination while granting licenses, and in case of state monopoly any disproportionate distribution of airtime because of political, religious, philosophical or ethical reasons is inadmissible. In order to evaluate whether the discrimination did take place or not, one should take into account all the political, religious and social life aspects of the corresponding society [38].

_______________________________________________________________

[1] See, for example: Vasilevič G.A. The possible realization of the European Convention for the protection of human rights and fundamental freedoms in the practice of constitutional and national courts of the republic of Belarus // The Belarusian Journal of International Law and International Relations. – 2002. -3. P. 3-7.

[2] See, for example: The address of the Constitutional court of the republic of Belarus on the state of constitutional lawfulness in the republic in 2000. The National Legal Internet Portal of the Republic of Belarus // http://ncpi.gov.by/ConstSud/rus/poslan00.html

[3] According to an additional protocol №11 the European Committee and the European Court were consolidated into the European court of human rights.

[4] Macovei M., Chefranova E.A. The European Convention for the Protection of Human Rights and Fundamental Freedoms. Article 10. The right to freely express one's opinion. Precedents and comments. M., 2001. P.4

[5] http://www.pfc.org.uk/legal/echrtext.htm

[6] The European standards in the sphere of human rights: the theory and practice of the European convention for the protection of human rights and fundamental freedoms. The university of Minnesota. The library on human rights. / [e-resource] // http://www.cjes.ru/lib/content.php?content_id=6924&category_id=3

[7] X. against FRG, 1986. The English and French versions are available on the official site of the European Court of human rights. // http://www.echr.coe.int/echr

[8] It needs to be mentioned that in Russian translations this phrase is significantly specified, that may theoretically result in some collision: "[…] но и таких, которые оскорбляют, шокируют или тревожат государство или какую-то часть населения (See, for example: The European Court of human rights. Selected decisions. V.1,2. Moscow: 2000-2002.)

[9] See, for example, Application no.23462/94, Case of Arslan vs. Turkey. Point 44 (i).The English and French versions are available on the official site of the European Court.// http://www.echr.coe.int/echr

[10] Cit. from: The European court of Human Rights. Selected decisions. V.1. Moscow: 2000. P. 209-210.

[11] Ibid, P. 526-527.

[12] Macovei M, Chefranova E.A. The European Convention for the Protection of human rights and fundamental freedoms. Article 10. The right to freely express one's opinion. Precedents and comments. M., 2001. P.8.

[13] K. against Austria, 1993. The official site of the European Court of human rights // http://www.echr.coe.int/echr

[14] Lingens against Austria, 1994. The official site of the European Court of human rights // http://www.echr.coe.int/echr

[15] Dalban against Romania, 1999. The official site of the European Court of human rights // http://www.echr.coe.int/echr

[16] Ibid.

[17] Gudwin against United Kingdom, 1996 // The European Court of Human Rights. Selected decisions. V.2. Moscow: P. 182-195.

[18] Lingens against Austria, 1994. The official site of the European Court of human rights // http://www.echr.coe.int/echr

[19] A brief overview of the case is cit. from Willem F. Korthals Altes. The review of the European law on defamation. / [e-resource] // http://eu-project.medialaw.ru/6/4/k4.htm

[20] Lingens against Austria, 1994. The official site of the European Court of human rights // http://www.echr.coe.int/echr

[21] Prager and Oberschlick against Austria, 1995. The official site of the European Court of human rights // http://www.echr.coe.int/echr

[22] De Haes and Gijsels against Belgium, 1997 // The European Court of Human Rights. Selected decisions. V.2. Moscow: P. 391-402.

[23] A brief overview of the cases (Barford against Denmark; Prager and Oberschlick against Austria; De Haes and Gijsels against Belgium; Skalka against Poland ) is cit. from Willem F. Kortals Altes. The review of the European law on defamation. / [e-resource] // http://eu-project.medialaw.ru/6/4/k4.htm

[24] The laws against defamation and the freedom of expression // Interights Bulletin. The Russian edition of the INTERIGHTS bulletin, №4, 2000. P.16.

[25] Lingens against Austria, 1994. The official site of the European Court of human rights // http://www.echr.coe.int/echr

[26] The violation of another Article of the Convention is obvious – the Article 6 (2), which guarantees the assumption of innocence.

[27] For example: in Lingens v. Austria case that resulted in a fine of 20 thousand shillings; Castells v. Spain, where the sentence was a year and one day of imprisonment. In Schwabe v. Austria case a fine of 3 thousand shillings was imposed, which in case of failing to pay was to be substituted for 30 days of imprisonment etc.

[28] The laws against defamation and the freedom of expression // Interights Bulletin. The Russian edition of the INTERIGHTS bulletin, №4, 2000. P.15.

[29] Willem F. Korthals Altes. The review of the European law on defamation. / [e-resource] // http://eu-project.medialaw.ru/6/4/k4.htm

[30] Macovei M, Chefranova E.A. The European Convention for the Protection of human rights and fundamental freedoms. Article 10. The right to freely express one's opinion. Precedents and comments. M., 2001. P.17.

[31] “Informationsverein Lentia” and others against Austria, 1993. The official site of the European Court of human rights // http://www.echr.coe.int/echr

[32] “Observer” and “Guardian” against United Kingdom, 1995; “Informationsverein Lentia” and others against Austria, 1993. The official site of the European Court of human rights // http://www.echr.coe.int/echr

[33] Groppera Radio AG and others against Switzerland, 1990. The official site of the European Court of human rights // http://www.echr.coe.int/echr

[34] Autronic Ag against Switzerland, 1990. The official site of the European Court of human rights // http://www.echr.coe.int/echr

[35] “Informationsverein Lentia” and others against Austria, 1993. The official site of the European Court of human rights // http://www.echr.coe.int/echr

[36] Markt Intern Verlag GmBH and Klaus Beerman against FRG, 1989. The official site of the European Court of human rights // http://www.echr.coe.int/echr

[37] A brief overview of the cases in this part (“Informationsverein Lentia” and others against Austria, 1993; “Observer” and “Guardian” against United Kingdom, 1995; Groppera Radio AG and others against Switzerland, 1990; Autronic Ag against Switzerland, 1990; Markt Intern Verlag GmBH and Klaus Beerman against FRG, 1989) is cit. from Macovei M, Cefranova E.A. The European Convention for the Protection of Human Rights and Fundamental Freedoms. Article 10. The right to freely express one's opinion. Precedents and comments. M., 2001.

[38] The European standards in the sphere of human rights: the theory and practice of the European convention for the protection of Human Rights and Fundamental Freedoms. The University of Minnesota.

Uładzisłaŭ Biełavusaŭ (born in 1984 in Homiel) – bachelor of law, a Belarusian State University fifth year student, faculty of international relations, international law department, also studies at Belarusian Collegium. Specializes on the European law. Preferable spheres of juridical realm – the legal functioning of mass media, the jural mechanism of the introduction of bilinguism in various countries, the legal institutions of the European Union and the Council of Europe, sociology of law.