The present article is the continuation of “Praŭnik” series of articles, dedicated to the current European mass media legislation. The article is aimed at familiarizing Belarusian readers with the mechanism of legally acceptable interference of the state (which is a necessity in a democratic society) into the freedom of speech domain. The analysis is primarily founded on specific European Court of Human Rights precedents. The previous issue contained an article directly dealing with the “freedom of expression” concept, the freedom of press and defamation issues, as well as the freedom of radio and television broadcasting (namely, the verdicts of a court, based on article 10 part І of the European Convention). This text is grounded on the precedents, resulting from interpreting article 10 part ІІ of the European Convention on Human Rights. The objective of the whole series is as follows – to build up a model of European human rights standards in order to immediately compare it to the norms of Belarusian legislation in the sphere of freedom of speech (to be continued in the following issue).

Article 10 Part 2 of the European Convention on Human Rights: “The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary”.[1]

1. The system of limitations in exercising the right to the freedom of expression.

The International Covenant on Civil and Political Rights[2] and the European Convention, while assessing the lawfulness of the limitations to the freedom of expression, virtually share a common set of three criteria. It is evident, that the courts of the countries joining the agreements and willing to abide by them are to apply the criterion similar in sense and rigidity[3]. Analysing court precedents, we have come to the conclusion that the conditions the Convention exacts for the legitimate (underlined by the author) interference by public authority are as follows:

• The conditions are to be legally stipulated (by statutory or case law; in general, by the legislation which is open to general use and predictable).
• They are to serve a lawful aim (such as territorial integrity, guaranteeing the impartiality of administering justice and upholding one’s reputation or the rights of other people).
• The conditions are to be essential for a democratic society.

In almost all the cases, pertaining to article 10, the Court investigates whether the appealed interference was essential for a democratic society. If so, the essential character turns it into a pressing social need. To put it differently, in order for the interference to be justified under article 10, it should be not only necessary, desirable or beneficial, but an urgent public exigency to interfere must be existent. The named criterion enables the Court to implement an all-European standard. This by no means signifies that the cases originating in different countries are investigated into in an utterly identical way. The member-states enjoy certain autonomy in applying their political, historical or cultural peculiarities. At the same time, the Court has frequently stated that the range of autonomy in the freedom of expression realm is rather narrow as a result of a fundamental character of this freedom. The range of autonomy is not limited to the geography, which means that it can vary from country to country. It is possible that it changes with time. In other words, the interference into the right for the freedom of expression, committed, for example, in 1980, may be regarded as the violation of article 10 in 2005. The case law of the European court is by no means static; it is an adaptable and developing mechanism[4].

Let us examine this very peculiarity of the Court by the example of interpreting the concept “laying the duties and responsibilities” in the sense it bears in part 2 art. 10. In Engel and others v. The Netherlands[5] case the ban to publish and distribute the paper made by a serviceman and containing criticism of some of senior officers, was recognized by the Court to be a justified interference into the exercise of one’s right to freely express his/her opinion. Despite the fact, the Court also stated that “there was thus no question of depriving them of their freedom of expression but only of punishing the abusive exercise of that freedom on their part”. In the case of Hatjianastasiou[6] a serviceman was also condemned for divulging secret information, related to a certain kind of armament and the way it should be employed, which could be grossly detrimental to national security. The Court determined that though the conviction of the officer violated his right to freedom of expressing his opinion, it is justified in accordance with part 2 art. 10: “The Commission takes into account the applicant's status as an officer of the armed forces and the specific duties and responsibilities attached to this status in context of military discipline … An officer applicant, responsible for elaborating an experimental missile program, undertook obligation not to spread the information, related to his professional activity”.

After almost 20 years after pronouncing its verdict on Engel and others case, the Court has practically changed its view while examining a similar case and made an adverse decision. In the case of Vereinigung Demokratischer Soldaten Österreichs and Gubi v. Austria[7] the authorities prohibited the spreading among the servicemen of a private periodical, criticising high-ranked military officers. The government of Austria insisted that the periodical damaged the national defence system and the defence capacity of the army. The Court rejected the claims of the government and stated that most materials “set out complaints, put forward proposals for reforms or encourage the readers to institute legal complaints or appeals proceedings.  However, despite their often polemical tenor, it does not appear that they overstepped the bounds of what is permissible in the context of a mere discussion of ideas, which must be tolerated in the army of a democratic State just as it must be in the society that such an army serves”.

In the case of Vogt[8] the Court decreed that dismissal as a means of discharging duty of political loyalty, which is demanded of an official, is an incommensurable punishment. At the same time the Court did not deny the necessity of fulfilling the duty. In 1987 Ms. Vogt was discharged from school, where she had been working for 12 years, because she refused to abandon the Communist Party. The duty of political loyalty was introduced in consideration of the notorious Weimar Republic experience. It was justified by the necessity to ban active participation of civil servants in the activities of political parties, pursuing unconstitutional goals. The authorities decided that Ms. Vogt violated the duty of a German civil servant to support and uphold the democratic system in the sense it bears in the Constitution and removed her from her position. The Court stated “Although it is legitimate for a State to impose on civil servants, on account of their status, a duty of discretion, civil servants are individuals and, as such, qualify for the protection of Article 10”. The Court went on to state that it allowed for the historical background of Germany; nevertheless, considering the absolute character, ascribed to the duty of political loyalty, its equal attribution to all the civil servants, without differentiation between the spheres of private life and professional obligations, German authorities violated both the right to freely express one’s opinion and that of freedom of association[9].

A significant peculiarity of part 2 art.10 is the direct reference to the “duties and responsibilities” of those who enjoy the rights enlisted in part 1. According to case law, these words signify that while evaluating the necessity of restricting the freedom of expression, one states the possibility of defining a concrete state of a person, which enjoys the freedom of expression, the duties and the responsibilities, corresponding to the situation. For a particular person the duty can result in a narrower or a wider interpretation of the possibilities to limit the freedom of expression. In particular, the Committee and the Court have many times accentuated the particular duties and responsibilities of servicemen, civil servants, journalists, politicians and the employees of law-enforcing bodies. In the verdict on Müller case the Court outlined that “Artists and those who promote their work are certainly not immune from the possibility of limitations as provided for in paragraph 2 of Article 10 (art. 10-2).  Whoever exercises his freedom of expression undertakes, in accordance with the express terms of that paragraph, "duties and responsibilities"”[10].

2 Lawful sanctions.   

Part 2 of article 10 poses another grave question: in which forms should the lawful interference of public authority be conducted? The European Court stumbled against the following national systems’ counter-measures:

• Criminal penalisation (a fine or imprisonment)[11].
• Civil penalty (reparation of damages)[12].
• Instituting a ban on publishing[13].
• Confiscating out of print publications or other materials, containing the expression of personal opinion or other distributed information[14].
• Refusal of granting a broadcast licence[15].
• Introducing a ban on being employed as a journalist.
• The demand of a court or another official body to reveal the source of information and the imposition of sanctions for the refusal to fulfil such a demand[16] etc.

The Court has established that the most hazardous is the prior censorship, for it prevents translating the information to those interested in receiving it. That is why the measures, preceding the publication, namely, the licensing of journalist activity, reviewing an article by an official prior to its publishing and the ban to publish some information are closely inspected by the Court[17].

Let us illustrate the position of the Court on the basis of Castells versus Spain (1992) case. In 1979 the declarant, a senator, representing the political movement, which advocated the independence of Basque state, published an article in “Punto y Hora de Euskal Herria” weekly. In the article he drew public attention to the facts of assaults and murders of Basque citizens by armed bands. He claimed that these groups acted with impunity for they were backed by the government and the ruling party. The article ended with “We must openly name those who are responsible for it”.

Public Persecution brought a criminal case against Castells. He was deprived of parliamentary immunity and on July 7, 1981 he was accused of contempt of government (an article of Spanish Criminal Code).

On October 31, 1983 the Criminal Chamber of the Supreme Court found Castells guilty and sentenced him to a year of imprisonment. The Court decreed holding the post of a senator bound the accused to restrict himself to the means of criticising the government, provided for in the Rules of Senate Procedures, which he violated. Moreover, his article was aimed at defaming the government. The Court refused to accept the proofs, the defence appealed to associate with the case in order to display that the information given in the article was common knowledge and represented pure facts. On April, 10 1985 the Constitutional Court declined the complaint (ampar) of Mr. Castells, lodged on November, 22 1983. Nevertheless, the execution of the sentence was suspended[18].

The European Court decreed that the issue of the freedom of expression by the members of parliamentary opposition should be given special care and the right of Mr. Castells to criticize governmental activity must not be limited because of his expressing the criticism in the press rather than in the parliament. The article of Mr. Castells should have been viewed as a whole, the reasonableness and bona fides of many of his assumptions could be proven. In a democratic society, one can not possibly regard the claims made by Mr. Castells as inadmissible, while the violation of article 10 did occur. There is no need to separately consider Mr. Castells’ complaint about the fact that analogous sanctions were not imposed on other people, voicing similar views. Demanding the publication of its decision in the national press and disposing of records on the trial of Mr. Castells lie not outside the jurisdiction of the Court. As Mr. Castells, being advocate by occupation, often visited the Court, the terms of his release on bail, necessitating his regular presence in court, could not be of much financial strain to him. While calculating the sum of Mr. Castells’ expenses, one should make allowance for the fact that four lawyers represented him in the Court, which seems to be redundant.

Thus, the Court’s belief that free political discussion provides the foundation of democratic society concept, has already resulted in its postulating that the range of criticism directed to public figures is wider than that aimed at private persons. By adopting this decision, the Court has further broadened the limits, inclusive of government itself. Nevertheless, the freedom of criticism has its limits: the government is entitled to preserving its reputation from unfounded and unscrupulous accusations, resorting to the means of criminal or civil law. The assumptions grounded on allegedly existent facts (as opposed to absolutely evaluative judgments) on indisputable actions are not shielded unconditionally. Despite the fact that judges De Mayer and Pekkanen, while formulating special opinion, regard the fact that Mr. Castells voiced his assumptions on the existent murders sufficient [for shielding them], the majority of judges considered the claim about the responsibility of the government to be a statement of facts rather than an evaluative judgment. The Court ruled in favor of Mr. Castells solely for the reason that it was impossible to foresee the outcome of the process had Mr. Castells been permitted to present the arguments prompting his allegations[19].

Even in the cases when criminal sanctions did not go beyond the obligation to pay relatively small fines, the Court opposed similar sanctions, for they could be viewed as a sui generis covert censorship. In a series of cases, concerning imposing fines on journalists, the Court stated that “although the penalty imposed on the author did not strictly speaking prevent him from expressing himself, it nonetheless amounted to a kind of censure, which would be likely to discourage him from making criticisms of that kind again in future; the Delegate of the Commission rightly pointed this out.  In the context of political debate such a sentence would be likely to deter journalists from contributing to public discussion of issues affecting the life of the community.  By the same token, a sanction such as this is liable to hamper the press in performing its task as purveyor of information and public watchdog”[20].

It would be of especial value to accentuate the position of the Court on the issues, when a fine or paying litigation expenses threaten the financial position of the person liable to it. Probably the best illustration of the fact would be the case of “Open Door Counseling Ltd.” (OD) and “Dublin Well Woman Centre Ltd.” (DWWC) against Ireland[21]. “Open Door Counseling Ltd.” and “Dublin Well Woman Centre Ltd.” are the not-for-profit organisations providing consultations to pregnant women. M. and D. are DWWC trainee-consultants. X. and J. are the women of childbearing age subscribing to the DWWC complaint. In 1985 Mr. C. took to court the matter of termlessly banning OD and DWWC as well as their employees from spreading among pregnant women the information on the possibility of making an abortion outside Ireland and won it. The court decision was upheld by the Supreme Court, which also obliged the organisations to cover litigation expenses. OD, having no assets, terminated their activity. OD, DWWC, M., D., X. and J. complained about the violation of their right to spread and receive information, right to private life and discrimination.

Considering the absolute and termless character of the ban; the absence of direct link between the spread of information and the threat to the lives of embryos; the fact that the information, though not presented to the public freely and in full, could, nevertheless, be obtained in other places and the inefficiency of the ban, which does not prevent from making abortions abroad, the present restriction is to be considered extreme and incommensurable to the aim, pursued by its introduction[22].

The Court has an established position on the issue of the expediency of civil sanctions, which is well illustrated by the Court decision on Tolstoy Miloslavsky Against The United Kingdom (1995) case, when the national court imposed on the applicant an apparently incommensurable fine of 1,500,000 £: “”…it does not mean that the jury was free to make any award it saw fit since, under the Convention, an award of damages for defamation must bear a reasonable relationship of proportionality to the injury to reputation suffered.

The jury had been directed not to punish the applicant but only to award an amount that would compensate the non-pecuniary damage to Lord Aldington[23]”.

Another problem the Court had to face a number of times was the issue of the expediency of confiscating the means of distributing information or ideas. Analysing Court decisions, one can find that it rarely recognizes such measures adequate. Let us look into the issue by the example of Müller versus Switzerland (1988)[24] case. This case was also chosen because it provides for the demonstration of Court methods regarding other acute and utterly controversial problem – defining the limits of admissible interference in order to protect morality (part 2 art. 10).

Because of the significance of this precedent, the two paradoxically contrary stages-decisions the case passed in Strasbourg will be demonstrated[25].

One of the chambers of the European Court of Human Rights confirmed the case law norm of the Court, which stated that if the freedom of expression is limited with regard to protecting public morality (which is erratic and subjective), the lawful limits of public authority assessment of certain abridgements’ necessity is to be interpreted broadly. By 6 to 1 vote (separate opinion was stated by judge Spielmann) the Court decreed that the conviction of the applicants – the painter and the organiser of the exhibition – for displaying paintings, which the Swiss courts recognized to be obscene, at the exhibition open to public, did not violate the freedom of speech, guaranteed by article 10 of the Convention. The confiscation of pictures, outraging civil morality, for an uncertain term does not breach article 10 as well.

The decision of the Court makes one question the efficiency of the present European mechanism of control, aimed at preventing the introduction of excessive limitations to protect public morality. Though the majority of Court members has avowed that “the view of sexual morals has changed”, they did not consider unfounded the position of Swiss courts, proclaiming that the pictures in question “accentuating the sexuality in its most coarse expressions” could “deeply violates the perception of sexual acceptability of the people with normal sensitivity”. The Court decreed the Swiss courts, in consideration of their right to assessment, vested in them by article 10 (part 2), were entitled to consider it “necessary” with the view of protecting public morality to impose on the applicants a fine for publishing obscene works. Similar was the decision of the Court concerning the confiscated paintings, which are the subject of controversy.

In contrast to the Court, the European Committee on Human Rights clearly distinguishes between a fine and a confiscation. The latter is deemed to be a grave violation of painter’s freedom of expression, for the confiscation hindered displaying his works both abroad and in Switzerland. The Committee postulated that preventing open demonstration of the objects, recognized by the authorities to be detrimental to public morality, could be achieved with lesser abridgement of Mr. Müller’s freedom of expression. That is why the Committee decreed (by 11 votes to 3) that the confiscation of Mr. Müller’s paintings was the measure unacceptable in democratic society and constituting the violation of article 10.

Judge Spielmann formulated an extremely blunt special opinion, concluding that both the fine and the confiscation constituted the violation of article 10. He deems that the penalty imposed was in no way necessary in a democratic society. Referring to the legal persecution of Flaubert and Baudelaire in the 19^th century for their novels “Madame Bovary” and “The Flowers of Evil” correspondingly, and their later acquittal, he called upon the governments of the Convention member-states to reckon with the relativity of the “obscenity” concept[26].